Mandatory Minimums

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Sens. Leahy, Paul Introduce Federal Mandatory Minimum Reform Bill [FEATURE]

Sen. Rand Paul (R-KY) joined Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) in introducing legislation that would give federal judges greater flexibility in sentencing in cases where mandatory minimum sentences are involved. The bill, Senate Bill 691, also known as the Justice Safety Valve Act of 2013, would expand the "safety valve" to apply to all federal crimes.

Senators Patrick Leahy (D-VT) and Rand Paul (R-KY)
Currently, the "safety valve" allows judges to impose a sentence below the mandatory minimum only in some drug cases. Only about 25% of federal drug offenders are currently able to take advantage of the "safety valve" to earn reduced sentences.

The bill comes as the federal government faces chronic budget crises and a federal prison population that has grown nearly 10-fold in the past three decades and by 55% since 2000. In 1980, there were some 25,000 federal prisoners; now there are more than 217,000, and almost half of them are drug offenders. At more than $7 billion this year, the federal prison budget now accounts for almost one-quarter of all Justice Department spending, and is up by $2 billion in the last five years alone.

The bill also comes amidst a rising hue and cry to move away from mandatory minimums. The non-partisan Congressional Research Service issued a January report that suggested that instead of expanding federal prison construction, Congress "could consider options such as modifying mandatory minimum penalties," as well as increased resort to probation, reinstating parole in the federal system, and "repealing federal criminal statutes for some offenses."

Similarly, the US Sentencing Commission surveyed federal judges in 2010 and found that 70% of the 600 judges who responded favored expanding the "safety valve" to all mandatory minimum sentences. Rising federal prison budgets and sentencing reform have also been a continuing concern for Chairman Leahy. He held hearings last summer on the issue, and now he has sponsored legislation to do something about it.

"As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep criminals off the street and deter those who would commit violent crime," Sen. Leahy said. "Our reliance on mandatory minimums has been a great mistake.  I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them.  A one-size-fits-all approach to sentencing does not make us safer."

"Our country's mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the constitutional separation of powers, violates the our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer," said cosponsor Sen. Paul. "This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties."

Drug and sentencing reform advocates celebrated the bill's introduction, although some thought that even more should be done.

The Yankton (SD) Federal Prison Camp. It used to be Yankton College, but now houses minimum security prisoners. (wikimedia.org)
"I am thrilled that Sen. Leahy and Sen. Paul are promoting this common-sense sentencing reform," said Julie Stewart, founder and executive director of Families Against Mandatory Minimums (FAMM). "The mandatory minimum sentences Congress might be appropriate in many cases, but certainly not in every case, especially those involving non-violent offenders. By giving courts more flexibility, Congress will ensure that judges use our scarce prison beds and budget to keep us safe from truly violent offenders."

"Congress must reexamine mandatory minimum sentencing to determine whether they are necessary and appropriate while also analyzing the racial disparities that have arisen in the imposition of mandatory sentences," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance. "This bill is a step in the right direction. While overdue, the recent reform of the crack-powder cocaine sentencing disparity did not do enough to alleviate mass incarceration, or racial disparities, in the federal system. Passage of this bill will hopefully mean more judges won’t give low-level drug law offenders draconian sentences reserved for drug kingpins. Research has shown that more than half of all federal drug law offenders had little or no criminal history but they make up more than half of all federal prisoners."

"We are pleased that after decades of 'lock 'em up' rhetoric, Republicans and Democrats are beginning to realize that ever increasing penalties are not the most effective way to keep Americans safe," said Jeremy Haile, federal advocacy counsel for the Sentencing Project. "Nowhere is this more true than in the area of mandatory minimum penalties, which are limited because they address severity of punishment, not certainty. A recent Congressional Research Service report shows that mandatory minimums are a primary driver of our high prison populations and costs. Moreover, they are rife with racial unfairness.  While it would be better to eliminate mandatory minimums altogether, we are pleased that Senators Leahy and Paul have introduced legislation that would mitigate their harshest effects. Congress should take up this legislation to address ineffective 'one size fits all' mandatory minimum penalties that allow little consideration for individual characteristics and drive racial disparities in sentencing."

And, as Nora Callahan of the November Coalition, a drug reform group that concentrates on federal prisoners, has been pointing out for years, mandatory minimum reforms and sentencing reforms in general are "back end" solutions. While such measures are a necessary corrective to ameliorate what Leahy called the country's "mass incarceration problem," the more radical solution is on the "front end" -- stopping those federal arrests and prosecutions.
 

"It's a good news bill, don't get me wrong," Callahan said Thursday. "Dismantling the drug war a brick at a time is one way to get rid of it -- or will we just create more space for more people to do less time? I can't help but know that leaders can get bolder than this. And those judges would do well to use a lot more discretion pretrial and start disallowing various 'extrajudicial procedures' like count-stacking, reliance on informants and rewarded witnesses; fast-tracking--and it wouldn't take an act of Congress."

Washington, DC
United States

Sens. Leahy and Paul Introduce Bill to Undo Mandatory Minimum Sentencing

Pat Leahy & Rand Paul
Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) have introduced S. 619, the bipartisan "Justice Safety Valve Act of 2013," allowing judges to set aside mandatory minimum sentences when they deem appropriate. It expands on legislation passed in 1994 that allows judges to waive five- and ten-year sentences for certain drug crimes. (We advocated for the original safety valve, during our first year as an organization.) The Leahy-Paul bill does this for all federal crimes.

Leahy, who chairs the Judiciary Committee, has a press release. So does FAMM.

Phil will be doing a feature story on the bill tomorrow, but not in time for tomorrow morning's email editions, so be sure to check Drug War Chronicle this week. (If you don't get the Chronicle by email, you can sign up here.)

Snitch: Action Thriller With a Drug War Message [FEATURE]

Snitch is a Hollywood action thriller with a message, and it’s a message that is so far playing well with audiences and theaters across the land. The $15 million crime and justice pic starring Dwayne "The Rock" Johnson and Susan Sarandon has already done more than $32 million in gross box office receipts, and its being held over for a fourth week in select theaters around the country.

Based on a 1999 PBS Frontline documentary of the same name, Snitch tells the story of trucking company owner John Matthews (Johnson), whose estranged son is set up by a friend in trouble with the law. The son accepts delivery of a package of Ecstasy, and is then raided and arrested by the DEA. Matthews' hired attorney explains to the stunned parents that their son is looking at a 10-year mandatory minimum sentence, and the only way out is to snitch on somebody else.

The son bravely refuses to rat out his friends and is kept behind bars, where he is brutalized, but Matthews feels it is nobler to save his son and decides to intercede on his behalf. Using his business connections, he wrangles a meeting with hard-hearted, politically-driven US Attorney Joanne Keeghan (Sarandon) and offers to set up dope dealers himself if that can get his son out of trouble.

From there, it's typical action thriller material, with dangerous, desperate dope dealers (who already have two strikes and aren't about to go down for a third), tormented ex-cons trying to go straight, duplicitious (but kind hearted) DEA agents, and bloodthirsty Mexican cartels. There is danger, suspense, shoot 'em ups, and car chases before the movie resolves with junior getting out of jail and the family disappearing into the witness protection program.

But running throughout the nearly two-hour movie are the twin themes of snitching and mandatory minimum sentencing. Snitch lays bare the workings of the drug war's informing imperative, scratching at the surface of the moral contradictions involved, and subtly brings to life the mindless cruelty of imposing lengthy mandatory minimums on nonviolent drug offenders, but it manages to do so in the middle of a mainstream cinematic entertainment vehicle.

That's just what director Ric Roman Waugh wanted, he told Drug War Chronicle in a phone interview Wednesday from Austin, where he is attending the SXSW festival. Once merely a music showcase, SXSW is now a playland for all sorts of artistic endeavors, including Hollywood action films with a message.

"The move is really a first testament to how far you go to protect your kids," said Waugh. "In the documentary, he didn't just talk the talk, he walked the walk. He got the US Attorney to sign off and reduce his kid's sentence for a bigger bust. That really happened, and we wanted to open that up."

When he was offered the chance to rewrite the script for the movie, he jumped at the offer, he said.

"They sent me the original script and the Frontline documentary, and it was that core message that really jumped out, and we turned that into a first-person point of view movie," the stuntman turned director said. "The snitching and the mandatory minimums were integral to what we wanted to talk about. The message of the movie is that you can be for or against the war on drugs, but watch what this father went through and then think about these controversial mandatory minimums. When you walk out of the theater and realize nonviolent drug offenders are doing longer sentences than rapists and people who committed manslaughter, that's something to think about."

panel at DC Snitch screening, with Rep. Bobby Scott (D-VA, FAMM president Julie Stewart, Waugh, and Lawrence & Lamont Garrison
Snitch was screened last week at an event hosted by Families Against Mandatory Minimums (FAMM) in Washington, DC, but the film has been generating buzz among the broader public as well.

"The response has been tremendous," Waugh said. "There is a core audience that will go see a movie with a message, but that's a relatively small audience. But when you can put that message in the body of bigger action thriller and you're not hitting them over the head with it but just allowing them to experience the controversies, they're coming out and talking about it. They're talking about the world of informants, the liar's club, if you will, and what you would do if your life or the life of your child was on the line. It's created a lot of dialog, and that's what we intended.

Unlike documentaries, which typically play to art house audiences and die quiet, largely unlamented deaths, this Hollywood treatment of the issues has demonstrated some staying power.

"It's been playing for three weeks and will continue for quite awhile," said Waugh. "We've exceeded expectations for movies this size, lots of theaters are keeping us over for the fourth week, and we're even adding a few screens. People are able to relate to this in their own lives. What would happen if their kids were in harm's way? The movie tries to look these draconian laws and the system as a whole and get people to ask where they stand on them. We're only halfway there, and it's already a success. That's a real testament that you can do a message movie, you can do a commercial action thriller that's about something."

As noted above, even though Snitch opened on February 22, it's still being held over in theaters across the land. If you have an interest in drug war issues or if you get off on action flicks in general or flicks starring The Rock in particular, or better yet, if you have a friend or family member who's gaga for The Rock or a sucker for car chases, but has displayed no particular interest in or awareness of issues like snitching or mandatory minimums, it's time to have a movie date while Snitch is still on the big screen.

Senate Judiciary Chair Calls for End to Mandatory Minimums

Sen. Pat Leahy (D-VT), the powerful head of the Senate Judiciary Committee, called for the end of mandatory minimum sentencing at both the state and federal levels in comments made last Wednesday. He also said he hoped the federal government would not spend "a great deal of resources" on enforcing marijuana laws in states where it is legal. 

Sen. Leahy addresses law students at Georgetown University (leahy.senate.gov)
While Leahy said his highest priority in the new Congress that begins next month would be overhauling immigration laws, along with renewing the Violence Against Women Act and taking some action on gun policy, he diverted from his prepared remarks to Georgetown University law students to condemn mandatory minimum sentencing, calling the practice "a great mistake" that harms youth and minorities.

"I think at the federal level and at the state level, get rid of these mandatory minimum sentences. Let judges act as judges and make up their own mind what should be done," he said. "The idea that we protect society by one size fits all, or the idea that we can do this kind of symbolism to make us safer -- it just does not work in the real world."

Leahy, who has previously said he would hold hearings on the federal response to successful marijuana legalization initiatives in Colorado and Washington, did not bring up the topic in his prepared remarks, but did respond to questions from students on the issue. He reiterated that he will seek clarification from the administration on how it will enforce federal marijuana laws there and suggested that he hoped it would not be a high priority.

"My own predilection is, I hate to see a great deal of law enforcement resources spent on things like the possession, use of marijuana when we have murder cases, armed robbery cases, things like that that go unsolved," he said.

Leahy is the longest serving Democrat in Congress. He could have been appointed to the chairmanship of the budget-controlling Senate Appropriations Committee, but instead chose to stay on as head of the Judiciary Committee, where he has the power to call hearings and move legislation on criminal justice issues.

Washington, DC
United States

California Three Strikes Reform Initiative Poised to Win [FEATURE]

In 1998, Bernice Cubie got caught with $10 worth of cocaine. Since it was her third offense, although she had never hurt anyone, she was sentenced to up to life in prison under California's Three Strikes law. Now 59 years old, Cubie has served more than 14 years in prison at a cost to California taxpayers of around $700,000 dollars.

Barring something changing fast for Ms. Cubie, she will die in prison. The African-American grandmother has already lost one kidney in prison and is now suffering from an advanced form of terminal cancer. Although she walks only with the assistance of a walker and had a parole plan to be housed with her daughter and a drug treatment counselor, as well as the recommendation of prison doctors, the California parole board denied her compassionate release petition. She has less than six months to live, but will not have a parole opportunity until 2023.

Shane Taylor is another California Three Strikes lifer. He's also been behind bars since 1998, when he was convicted and sentenced to life for possession 0.14 grams of methamphetamine. His previous two convictions were for burglaries days apart in which nothing was taken but a checkbook, and police recovered that before any money was withdrawn.

The judge who sentenced Taylor now regrets that decision and speaks out publicly in favor of his release. So does the district attorney who prosecuted him under the Three Strikes law. But although he has already served 13 years in prison for little more than a tenth of a gram of meth, he won't be eligible for parole for another dozen years.

That is, unless California voters next month approve Proposition 36, a measure designed to amend the Three Strikes law so that only prisoners whose third strike was a "serious" or "violent" offense under California statute would be subject to life imprisonment. In addition to modifying future Three Strikes sentencing, the measure would also impose some retroactivity, allowing prisoners currently serving Three Strikes life sentences to seek a judicial order to reduce those sentences to no more than twice the sentence for a first offender.

Proposition 36 could save the cash-strapped state $100 million a year, according to the Legislative Analyst's Office. Between the prospect of budgetary savings and the desire to undo egregious sentences imposed on small-time, nonviolent offenders, including many drug offenders, the measure looks likely to appeal to California voters.

According to a bevy of recent polls, Proposition 36 appears to be sitting pretty. A September California Business Roundtable poll had it winning 72% to 19%, a September Los Angeles Times poll had it winning 65% to 20%, and an October Business Roundtable poll had it winning by 72% to 20% in a survey that included strong support, likely support, and leaning toward. The lone outlier was a September SurveyUSA poll that had Prop 36 with 43%, with 23% opposed and a whopping 34% undecided, but even in that poll, support for the measure was nearly double opposition.

"Things are looking pretty positive," Yes on 36 spokesman Dan Newman reluctantly conceded. "Most of the public polling has it around 70%, and people are voting now. We've built an unprecedentedly broad and deep coalition with support from law enforcement leaders, civil rights groups, the district attorneys of big cities, and fiscal conservatives like Grover Norquist."

Indeed, the campaign's list of endorsements is impressive, and includes Los Angeles Mayor Villaraigosa, Los Angeles County District Attorney Steve Cooley, and LAPD Chief Charlie Beck and former Chief Bill Bratton. Also on board are San Francisco DA George Gascoigne and Santa Clara County DA Jeff Rosen, along with several dozen other law enforcement and elected officials.

"The state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society. The punishment should fit the crime," said Cooley.

Somewhat more head-turning is support from conservatives, such as Norquist and his Americans for Tax Reform. It's about the money, said Newman.

"Conservatives support this largely for fiscal reasons," he explained. "They don't like seeing us waste $100 million a year at a time of looming fiscal crisis. This is money that could be used for schools or to prevent crime."

Not everyone supports the initiative. Mike Reynolds, the author of the original Three Strikes legislation, wrote that initiative after his teenage daughter was shot and killed by a repeat offender in an attempted purse snatching in Fresno. He says that $100 million a year is a small price to pay to keep dangerous offenders locked up.


"Three Strikes passed and California's crime rate dropped in half," said Reynolds. "There is no way we should change something that has been so successful," he argued. "The reductions in crime have really saved the state an enormous amount of money and increased our quality of life. You have half the chance of being a violent crime victim than before Three Strikes."

But attributing the drop in crime in California to the Three Strikes law may be a stretch. Violent crime rates have been dropping around the country for the past two decades -- in states with and without harsh sentencing mechanisms. Criminologists are divided on the causes of the drop.

"The initiative campaign is quick to point out their support from law enforcement, but only three of 58 district attorneys, one sitting police chief, and one retired chief support it," Reynolds said. "Virtually all major agencies in the state are against this. Everything with a badge and a uniform short of the Cub Scouts is against this thing. I've never seen such a full court press."

But despite all that supposed law enforcement enmity, there has been very little opposition presence this year. That's a change from 2004, when Proposition 64, which also would have amended the Three Strikes law, looked set to pass until the final weeks, when Gov. Schwarzenegger and actor Martin Sheen helped law enforcement raise a late clamor and send the initiative down to defeat.

Reynolds' opposition to Three Strikes reform is understandable given his personal history, said Newman, but it shouldn't get in the way of smart public policy.

"I'm sorry for the unbelievably tragic loss he suffered," he said. "It's the worst thing anyone could have to go through, and I can't imagine the pain and suffering that must bring, but for folks who want to prevent serious and violent crimes in the future, the best way to do that is to ensure that law enforcement resources are focused on those dangerous and violent criminals. We are facing dual challenges of fiscal crisis and prison overcrowding," Newman continued. "We have to be smart and make some wise decisions in terms of how we deal with this. Will we release someone who recently committed a violent crime or will we release someone who got caught with a joint 30 years ago and is now in a wheelchair?"

California voters are already making their choice through early voting. We will know how they feel when the final votes are tallied on election day.

CA
United States

Supreme Court Grants Lesser Sentences in "Pipeline" Crack Cocaine Cases

The US Supreme Court ruled last Thursday that decreased crack cocaine sentences approved by Congress in 2010 also apply to people who were convicted but not yet sentenced when the law took effect. The decision could result in reduced sentences for thousands of so-called "pipeline" federal crack cocaine defendants.

Congress passed the Fair Sentencing Act and President Obama signed it into law after years of complaints about the sentencing disparities between crack and powder cocaine and the racial impact of those disparities. Under laws passed in the late 1980s, it took 100 times as much powder cocaine to generate mandatory minimum prison sentences as it did for crack cocaine. The act reduced the quantity disparity to 18:1.

The decision in two cases of men convicted on federal crack charges but sentenced after the act became law came on a narrow 5-4 vote. The two cases were consolidated in a single ruling in Dorsey v. United States.

In one case, Edward Dorsey was arrested in 2008 and pleaded guilty in July 2010 to possessing 5.5 grams of crack with the intent to distribute. He was sentenced to a mandatory minimum 10 years; under the new law, his sentence would likely have been around four years.

In the other case, Corey Hill was convicted in 2009 of selling 53 grams of crack in 2007 and sentenced to 10 years in prison; under the new law, his sentence would have been around five years.

Federal appeals court split on whether the new law should be applied retroactively, prodding the Supreme Court to take up the cases and bring clarity to the issue.

The court split in what has become almost standard for the Roberts court. All four liberal justices weighed in on the side of extending the sentencing reductions and were joined by swing justice Anthony Kennedy. The court's four staunch conservatives all dissented.

Sentencing reform advocates welcomed the ruling.

"We are thrilled with the court's decision," said Julie Stewart, executive director of Families Against Mandatory Minimums, which had filed a friend of the court brief in the case. "We considered it patently unjust to make these pipeline defendants serve longer sentences under a scheme that was completely repudiated by Congress. As the court found, doing so would have flouted the will of Congress, which called on the US Sentencing Commission to lower crack cocaine sentences 'as soon as practicable' after the Fair Sentencing Act was signed into law. Especially exciting is the fact that Justice Breyer's opinion for the majority recognized that people who were sentenced after August 3, 2010 to an old law sentence are eligible to seek relief in federal courts."

Washington, DC
United States

US Senate Passes Synthetic Drug Ban, Without Mandatory Minimums [FEATURE]

The Senate has passed House Resolution 1254, the Synthetic Drug Control Act of 2011, which would federally criminalize the possession, distribution, and manufacture of synthetic cannabinoids ("fake marijuana") and synthetic stimulants ("bath salts"). The measure has already passed the House, and President Obama is expected to quickly sign it into law.

The synthetic cannabinoids are marketed as "herbal incense" and sold under brand names such as K2 and Spice, while the synthetic stimulants are marketed as "bath salts" and sold under a variety of names, including Ivory Wave and Vanilla Sky. Poison control centers and emergency rooms around the country have reported a sharp increase in synthetic drug incidents in the past two years, with Spice users reporting adverse effects similar to those sometimes reported with marijuana, while bath salts users have suffered more serious adverse effects, including hallucinations, psychotic breaks, and death.

Fake pot or bath salts or both are already banned in a number of states, and more states are considering criminalizing them. Both types of drugs have already been subject to emergency bans by the DEA while its legislatively mandated process for evaluating new drugs proceeds.

A widely publicized incident over the weekend in which a man chewed off parts of another man's face before being shot and killed by police has heightened concerns about the new synthetics, generating headlines like "Miami cannibal zombie-like attack linked to powerful 'bath salts' drug," but at this point, such claims are pure speculation. Police in the case have also posited "a new form of LSD" and "cocaine psychosis" to explain the attack, but any real information will have to await a toxicologist's report.

Sen. Rand Paul (R-KY) had single-handedly blocked passage of the bill for months by placing a senatorial hold on it. Paul objected to harsh mandatory minimum sentences in the bill, as well as to further broadening of the federal war on drugs.

But bill supporters, led by Sen. Charles Schumer (D-NY), resorted to a parliamentary maneuver to get it passed. They quietly attached it to an FDA regulatory bill, which the Senate passed last Wednesday.

Sen. Rand Paul got mandatory minimums removed
Still, Sen. Paul was able to insert language into the bill specifying that the Controlled Substance Act's mandatory minimum 20-year sentence for anyone supplying a drug that causes severe bodily harm or death to a user does not apply to the newly banned synthetics. That's because in order to get the FDA bill approved by Memorial Day, Sen. Rob Portman (R-OH), who actually sponsored the amendment adding the synthetics to the FDA bill, had to win unanimous consent for his amendment. Paul agreed not to object after Portman inserted the language about the mandatory minimums.

The bill still contains draconian sentencing provisions, including sentences of up to 20 years for a first sale or manufacturing offense and up to 30 years for a subsequent offense.

The bill's sponsors said after the vote that its passage would strike a strong blow against the new synthetics, but industry advocates and the Congressional Budget Office (CBO) disagree.

"Let this be a warning to those who make a profit manufacturing and selling killer chemical components to our teens and children: the jig is up," Schumer said in a statement. "This bill closes loopholes that have allowed manufacturers to circumvent local and state bans and ensures that you cannot simply cross state lines to find these deadly synthetic drugs."

"These new designer drugs can kill, and if we don't take action, they are going to become more and more prevalent and put more and more people at risk," Sen. Amy Klobuchar (D-MN), another sponsor of the bill said in a statement. "Today's action is good news for this critical legislation to give law enforcement the tools they need to crack down on synthetic drugs before they put more lives in danger, and I will continue to work to ensure these provisions are signed into law."

But the Retail Compliance Association (RCA), which represents smoke shop and convenience store operators and which opposed the bill, pointed out that the bill only bans five chemical families and only names 15 synthetic cannabinoids. Many of those compounds are already off the market, the RCA said, adding that the bill does not include hundreds of additional compounds unrelated to the chemical families banned under it.

"This bill will be touted as banning what law enforcement has deemed 'fake pot,' but it does no such thing; it actually only bans a few of the potential ingredients of these products, by no means the products themselves," said RCA spokesman Dan Francis. "The bill's range of enforcement may well be limited to the specifically named compounds because labs cannot test for chemical families, nor can the police or retailers. The products are tested by many different levels of this industry, and no lab I have spoken with has a test to determine the chemical family," Francis added.

The CBO, for its part, published a cost analysis of the bill in November that found its impact would be minimal.

"Based on information from industry and law enforcement experts, CBO expects that, by the date of the legislation's enactment, most vendors will have largely replaced the banned substances with new products because many states have already passed legislation banning some or all of the compounds listed in the bill and because the DEA has already issued emergency rules temporarily banning five cannabimimetic agents and three synthetic stimulants," the analysis found.

Still, Congress can pat itself on the back for "doing something" about the new synthetic drugs -- whether or not it actually does anything good.

Washington, DC
United States

Why Is Clarence Aaron Still in Federal Prison? [FEATURE]

Sentenced nearly two decades ago to three life prison sentences for his peripheral role in a crack cocaine deal, Clarence Aaron became a poster child for the inequities and harshness of drug war policing and sentencing policies. His case has garnered attention in media outlets from PBS to Fox News, and he was featured in the 1999 PBS documentary "Snitch."

Clarence Aaron
Aaron, then a linebacker at Southern University in Baton Rouge, introduced the brother of a drug supplier to a cocaine dealer he knew from his high school days in Mobile and was present when a nine-pound cocaine deal went down. Despite his tangential involvement, when federal authorities busted the cocaine operation, Aaron ended up with by far the longest sentence of anyone involved, because the other players cooperated with the government and named him as a major player, and because he refused to testify against his friends.

Now, the 43-year-old Alabamian is becoming a poster child for yet another drug war inequity: the failure of the Justice Department's Office of the Pardon Attorney to promptly and accurately report to the president on requests for pardons and commutations.

In a pair of lengthy investigative reports, the most recent published last Saturday, ProPublica and the Washington Post revealed that when Aaron tried for commutation for a second time in 2008, Pardon Attorney Ronald Rodgers, who is still in the post, failed to convey critical information about his request to the Bush White House, including recommendations from the US Attorney and his sentencing judge that his application be granted. 

"I have reviewed various documents submitted by Clarence Aaron in support of his petition for commutation of sentence and agree that Aaron should receive a commutation of his life sentence," wrote US Attorney for the Southern District of Alabama Deborah Rhodes in her November 2008 memo to Rodgers.

US District Court Judge Charles Butler, Jr., also shifted from an earlier stance of neutrality on Aaron's request to one of support. "Looking through the prism of hindsight, and considering the many factors argued by the defendant that were not present at the time of his initial sentencing, one can argue that a less harsh sentence might have been more equitable," he wrote in response to a motion filed by Aaron’s attorneys.

Via a phone interview with the pardon office, Butler told staff attorney Samuel Morison that Aaron "should be granted relief" immediately by the president. Morison then sent an e-mail to Rodgers telling him what Butler had said and asking whether he should update Aaron's file with the new positions taken by the judge and the prosecutor. Rodgers responded by saying he would take care of it.

He didn't. Instead, he made no new recommendation to the White House and did not revise Aaron's file to reflect the new stances by the judge and prosecutor. Nor did he pass on years of favorable prison reports describing Aaron's rehabilitation or mention an affidavit Aaron filed with the pardons office in 2007 in which he expressed further remorse and asked "for a second chance to be a productive citizen."

The Bush administration, acting on the Office of the Pardon Attorney's recommendation, turned down Aaron's commutation request in December 2008.

When ProPublica showed the statements from the judge and prosecutor to Kenneth Lee, the White House lawyer working on Aaron's case, Lee was mind-boggled. He said that had he seen those statements, he would have recommended a commutation.

"This case was such a close call," Lee said. "We had been asking the pardons office to reconsider it all year. We made clear we were interested in this case."

Aaron isn't alone in getting sub-par treatment from the pardon office. ProPublica and the Post cited a former pardon office lawyer as saying some applicants have been turned down "en masse," with little or no review. But it gets worse. The first ProPublica and Post report on the pardon office, published in December, found that white offenders seeking pardons and commutations were four times more likely to receive them than black ones.

And, as the number of commutation requests has risen along with the prison population, the likelihood of actually winning one has been declining. It was one out of a hundred under Reagan and Clinton, but declined to little more than one out of a thousand under George Bush. President Obama so far has commuted the sentence of one person out of 3,800.

The Office of the Pardon Attorney has been backlogged for much of the last decade, and that may account for some of the problem. When Rodgers took over, he attempted to streamline the office to address the backlog. Instead of having office attorneys review and research each case, he turned them over to paralegals. The result was too often merely a pro forma review.

"The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied," Morison said.

Rodgers reverted back to the old system in 2010, but that was too late for Clarence Aaron and the thousands of others summarily rejected by the pardon office. The apparent problems at the pardon office have sentencing advocates calling for changes.

"We need to see some change on several fronts," said Marc Mauer, executive director of the Sentencing Project. "First, the administration needs to look at what's happening or not happening at the Office of the Pardon Attorney, and some of that should include a rethinking of how the pardon process takes place. There are calls for an independent commission to make these recommendations to the president, not an entity within the Justice Department. That's at least worthy of consideration to see what the trade-offs are," he mused.

"Also, the White House should make it clear that to be consistent with its longstanding support or the reform of crack cocaine sentencing, there should be an examination of those older cases currently in prison," Mauer added. "They should consider recalculating those mandatory minimum sentences as if they were sentenced today, to put them in sync with the new law. That would not only be consistent, it could have a substantial effect on the federal prison population."

Mauer's first suggestion echoes one made by former Obama White House counsel Gregory Craig, who told an American Constitution Society panel on the pardons issue last week that the president could eliminate the pardon office by executive order. He suggested a bipartisan review panel reporting directly to the president.

"We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice," Craig said.

Families Against Mandatory Minimums (FAMM), which has championed Aaron's case as well as many others, called the ProPublica report "extremely disturbing but not surprising." The organization is calling for a congressional investigation and, on Monday, issued a sign-on letter to demonstrate public support for the call.

"Between this report and ProPublica's earlier report on the pardon process, the Pardon Attorney's office has been shown to willfully misrepresent the facts of commutation requests to the President and contribute to a racial imbalance among pardon recipients. The Pardon Attorney's office is not a gatekeeper but a brick wall," said FAMM president Julie Stewart. "Congress should investigate this egregious behavior immediately with oversight hearings. The entire clemency process should be removed from the Department of Justice's control. It is not in the president or the public's interest to have a Pardon Attorney's office that is captive to a prosecutorial agenda, doesn't take clemency cases seriously, and doesn't treat applicants fairly."

FAMM pointed to other cases it said suggested something was seriously wrong with the pardon office.

"We have long believed that the Pardon Attorney's case evaluations have been subjective and misleading," said Stewart. "Now we know that is true in the case of Clarence Aaron. Many other cases are suspect, too. President Obama denied a commutation to Barbara Scrivner, a low-level, nonviolent drug offender who has served 16 years of her 30-year sentence for her minor and addiction-driven role in her husband's methamphetamine activity. Did the Pardon Attorney ever inform President Obama of Scrivner's extraordinary rehabilitation and the support she had from the prosecutors who tried her, the judge who sentenced her, and her congressman? If someone with that much support cannot get a favorable recommendation from the Pardon Attorney, who can?" she asked.
 

"We learned there have been only 12 commutations in the past 12 years, and only one under this president, and at least one derailed under Bush," said FAMM general counsel Mary Price. "And then there are the problems with the pardons. There is a lot more to investigate. I don't see how lawmakers can come to the conclusion there's not a serious problem. Not only Congress, but the administration and the Justice Department ought to be taking notice of this and acting accordingly."

"The letter sent today demonstrates that this story is not going to go away and that DOJ cannot sweep the Office of the Pardon Attorney's disturbing behavior under the rug," said Stewart.

Whether the Obama administration or the Congress will be moved to act on these latest revelations remains to be seen. Meanwhile, Clarence Aaron sits in federal prison, where he will die if he does not win a commutation. He filed a new application in 2010. That one is still pending.

Washington, DC
United States

Louisiana Heroin Penalties Not Harsh Enough, Solon Claims

In Louisiana, merely possessing an ounce of heroin earns a mandatory minimum five-year prison sentence and up to 45 years, and possessing 400 grams (less than a pound) earns a 15-year mandatory minimum. Possession of any amount with the intent to distribute earns a five-year mandatory minimum sentence, and up to 50 years. That's not enough for one Louisiana legislator.

An ounce of heroin would get you eight years in prison under a bill proposed in Louisiana. (wikimedia.org)
Sen. J.P. Morrell (D-New Orleans) has introduced a pair of bills that would make those draconian sentences even harsher. Senate Bill 66 would double the mandatory minimum for possession with intent from five to 10 years, while Senate Bill 67 increases the penalty for possessing an ounce from five to eight years and the penalty for possessing 400 grams from 15 to 24 years.

Those bills are currently before the Senate Judiciary Committee, as is another Morell-sponsored bill, Senate Bill 3, which would alter the state's second-degree murder statute.

Under that law, deaths that occur during the commission of any of 15 specified felonies are considered second-degree murder, even if the perpetrator had no intent to kill. Morrell's bill would add "the unlawful sale, distribution, or dispensation of heroin, methamphetamine or 'crack' cocaine" to the list. Under Morrell's bill, people who sold those drugs to others who then overdosed and died could be charged with second-degree murder.

Yet another Morrell bill, Senate Bill 59, would make it a felony offense to use a minor in a drug trafficking offense or even to commit such an offense if a minor is present. Morrell seeks a 10-year mandatory minimum for that one, and up to 30 years. SB 59 has already passed out of committee and awaits a Senate floor vote.

Baton Rouge, LA
United States

West Australia Enacts Mandatory Minimums for Marijuana

Changes to West Australia's Misuse of Drugs Act that came into effect last weekend are shifting the state from among Australia's most marijuana-friendly to one with the most draconian punishments. People convicted of growing a single pot plant or processing the herb could face a mandatory minimum one-year sentence if a child was endangered or suffered harm.

West Australia succumbs to "reefer madness"
People convicted of a second drug offense, even if they were growing only one plant, face a six-month mandatory minimum if by doing so, they endangered a child's health by exposing him to the activity. People could get the mandatory minimum, for example, if a child is exposed to fertilizers or pesticides, if he cut himself on gardening equipment, or if he knocked over a potted marijuana plant and injured himself. In passing the amendments, West Australia is criminalizing and harshly punishing acts that would be considered accidents, or, at worst, incidents that could be investigated for child endangerment, if any other plant were involved.

That's a sea change from last year, when people who were caught growing one or two marijuana plants faced a maximum $150 fine and drug counseling. The amendment is ostensibly aimed at clandestine drug labs -- meth lab busts happened at a rate of every other day in the state last year -- but they also target those who "cultivate or prepare illicit drugs," including marijuana.

A spokeswoman for Police Minister Rob Johnson told the Australian AP that it was "unlikely" small-time users and growers with children would be sentenced under the provision, but there was still a risk.

"If the children are exposed to dangerous chemicals and safety hazards as a result of the cultivation or are injured by the cultivation, the new provisions could be applied," the spokeswoman said.

But the West Australia Law Society criticized the mandatory minimums, saying they removed any discretion in sentencing and were open to abuse.

"You might even find that where the judicial system does not agree with a mandatory jail term for a small-time cannabis grower and user, there will be a reluctance to prosecute or convict," a society spokesman said. "As it stands, the punishment would certainly not fit the crime and would appear to be excessive."

The opposition Labor Party, which had championed the state's earlier progressive marijuana laws, tried to have it both ways. The party voted for the amendments because it didn't want to be seen as "soft on crime," but tried to change the legislation to remove mandatory minimums for marijuana growers and users, spokeswoman Michelle Roberts told the AAP. Failing that, Labor voted for it anyway.

And Labor leader Mark McGowan said he disagreed with the new provisions. "Personally, I wouldn't like to see people go to jail, mandatorily, if they're growing a couple of marijuana plants -- even though we support laws to ensure that is made an offense," he said.

While Labor can share the credit -- or blame -- for passage of the amendments, the bulk of the responsibility lies with the ruling Liberal-National coalition government, which pushed the legislation as part of its "tough on crime" agenda.

The law contains "obvious injustices," Labor spokeswoman Roberts said. "It won't stop drug cultivation -- there's no evidence to suggest that," she said. "What it's going to do is wrap up a whole lot of people unwittingly into a situation where they are facing a mandatory jail term. It's a huge cost to the community -- hundreds of thousands of dollars to incarcerate both parents and to take a child or children into care," she said. And it doesn't actually deal with the main issue," which she identified as drug addiction.

Perth
Australia

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