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Obama Commutes Sentences of Clarence Aaron, Seven Other Crack Offenders [FEATURE]

The White House announced yesterday that President Obama had granted commutations to eight federal prisoners serving decades-long sentences for crack cocaine offenses, including poster boy for drug war excess Clarence Aaron, who has spent the last 20 years behind bars. The president also pardoned 13 former prisoners.

Finally, Clarence Aaron will go free.
"Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness," the president said. "But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all."

[Editor's Note: The Senate Judiciary Committee was marking up three sentencing reform bills this same day.]

Some sentencing reforms have been enacted since the harsh escalation of the drug war in the Reagan era, including the Fair Sentencing Act of 2010. It was unfair to continue to let people languish serving sentences no longer applicable, Obama suggested.

"If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society," he said." Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year."

The commutations are a departure for the Obama administration, which until now has been the stingiest in recent presidential history when it comes to the pardon power. Before today, Obama had issued only one commutation, where someone currently serving a sentence is actually released from prison, and 39 pardons of people who had already been released, some of them decades ago.

While all eight people whose sentences were commuted suffered for years under the impact of harsh federal sentencing laws racially biased in result if not, charitably, in intent, Clarence Aaron in particular has served as the face of the unjustly punished deserving of presidential mercy. Then a college student, the first-time, nonviolent drug offender was sentenced to three life sentences for a peripheral role in a cocaine deal in 1993.

A model prisoner, his case became widely known as a result of a PBS News Frontline special about the use of informants in drug cases. His case drew additional publicity when the investigative journalism consortium ProPublica documented problems with the Office of the Pardon attorney, using Aaron's more than a decade-long effort to obtain a pardon as Exhibit #1.

Aaron's reaction to the news was not surprising.

"He was just overcome," said his attorney, Margaret Love, herself a former US Pardon Attorney, who spoke with Aaron this morning shortly after he received the news. "We're very grateful to the president," she told ProPublica after the commutations were announced.

That all the commutations were for crack cocaine-related offenses, Love said, "says something very important about the long federal sentences for drug crimes. There are a lot of people in prison whose cases are similar to the ones being commuted."

The sentencing reform group Families Against Mandatory Minimums (FAMM) said four of its supporters, including Aaron, had had their sentences commuted, but that there were many more who deserved to come home, too.

"Now that the president has opened the door to doing commutations, he might make it a more regular activity, and not just save it for the holidays or the end of his term," said FAMM president Julie Stewart. "He certainly has plenty of cases that he could choose from. I guess that time will tell."

Other sentencing and drug reform organizations were pleased and encouraged by the news, but joined FAMM and the president in calling for more.

ACLU deputy legal director Vanita Gupta chimed in, "President Obama today gave several Americans who were unnecessarily sentenced to die behind bars the chance to reunite with their families. This is one important step toward undoing the damage that extreme sentencing has done to so many in our criminal justice system. We hope the President will continue to exercise his clemency powers and lend his support to systemic reform that will make our criminal justice system smarter, fairer, and more humane." A recent report by the ACLU on people serving life without parole sentences highlighted the cases of four of the people who received commutations this week -- Aaron, Stephanie George, Jason Hernandez, and Reynolds Wintersmith, Jr.

"It's wonderful news that Obama has granted clemency to these individuals. We hope this is the just the beginning of the President using his executive powers to right the wrongs of the criminal justice system," said Anthony Papa, media relations manager for the Drug Policy Alliance, who was granted clemency in New York State in 1997 after serving 12 years under the notorious Rockefeller Drug Laws. "I hope governors with the same power at the state level follow his lead and reunite more families."

"Through his actions today, the President has signaled his willingness to undertake needed reforms to the criminal justice system," said Nicole Austin-Hillery, director of the Brennan Center for Justice Washington, DC, office. "For too long, harsh sentences and punitive policies have fed a system of mass incarceration in this country. A comprehensive effort, involving the Administration and Congress, is needed to solve this crisis and return balance to the scales of justice by creating a more rational, fair, and cost-effective criminal justice system."

"We commend the President on this right and just action. It shows bold and necessary leadership," said Barbara Arnwine, president and executive director of the Lawyers' Committee for Civil Rights Under Law. "This marks a year in which the administration has taken great leadership on criminal justice issues. From the statements of Attorney General Holder to the American Bar Association in August, to the implementation of their policies, this shows a trajectory towards real justice in the criminal justice system."

The trajectory may be there, but take-off has yet to be achieved, several advocates warned.

Wade Henderson, president and CEO of the Leadership Conference on Civil Rights, said in a statement, "Until there is legislative action to make the Fair Sentencing Act retroactive, these commutations are the only relief available to federal inmates and their families. But the administration can only do so much; it is up to Congress to address this systemic failure.

"Kudos to President Obama for commuting these eight people," said DPA executive director Ethan Nadelmann. "But shame on the President for not commuting many more. With over 100,000 people still behind bars on nonviolent drug charges, clearly thousands more are deserving of the same freedom. Congress should act immediately to reduce the draconian federal mandatory minimum sentences that condemn thousands to decades behind bars for nonviolent drug offenses."

And while the commutations are welcome, they are not the real solution, said FAMM's Stewart.

"Even if President Obama used his clemency power energetically, which he has not, he simply wouldn't be able to commute every excessive sentence," she said. "The sentencing laws themselves are the problem. Congress needs to get moving and pass mandatory minimums sentencing reforms that save the worst prison terms for the worst offenders," Stewart said. "We hope there will be even more commutations today, but it's only Congress that can prevent the need for commutations tomorrow."

Still, it is good that Clarence Aaron and a few others are going home.

Washington, DC
United States

Iowa Federal Judge Criticizes Harsh Methamphetamine Sentences

A Sioux City-based US district court judge has criticized harsh tough methamphetamine sentencing guidelines, writing in a recent opinion that he considers them "fundamentally flawed," not based on empirical evidence, and too harsh for low-level offenders.

http://stopthedrugwar.org/files/judge-mark-bennett.jpg
Judge Mark Bennett (iand.uscourts.gov)
US District Judge Mark Bennett of the Northern District of Iowa cut the sentence of a convicted Sioux City methamphetamine dealer from nearly 16 years to just more than six years, saying in his 44-page ruling that he has a "fundamental policy disagreement" with the meth portion of the federal sentencing guidelines.

"The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity," Bennett wrote in his Friday ruling in US v. Willie Hayes. "The system is too severe in the indiscriminate way it treats offenders… Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing" outlined in federal law.

Bennett has been a long-time critic of federal mandatory minimum sentencing, and in his ruling, he argued that meth sentencing guidelines seemed more based on politics than science and lacked the depth of other portions of the guidelines. Meth dealers are getting much harsher sentences than people convicted of selling heroin or cocaine, he noted.

Iowa defense attorneys consulted by the Des Moines Register said Bennett's ruling was "a very big deal."

"It is a very big deal, and it's also something that's been coming for awhile," said Des Moines defense attorney Angela Campbell. "And he's right. The guidelines are so high, you can have a runner or a very low-level pseudoephedrine (purchaser) who gets life very easily… If you're buying pseudoephedrine for a large-scale drug operation, you don't get hit just on what you buy, you’re responsible for the same thing as the entire conspiracy."

"He's not a lone voice in the wilderness," said Iowa defense attorney F. Montgomery Brown, who added that defense lawyers need to cite Bennett's opinion in meth cases. "It's an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make," Brown said. "It's malpractice not to."

At least two other federal judges, Joseph Bataillon in Nebraska and John Gleeson in New York have issued similar criticisms of meth guidelines. Bennett's ruling drew on their reasoning.

Bennett, for his part, said reducing meth guideline sentences by a third was "a good starting point and a reasonable way to express my policy disagreement." But, he added, he "will reserve the ability to adjust the figure upwards and downwards as I weigh" other "important factors the guidelines do not contemplate."

Prosecutors could appeal Bennett's ruling in the Yates case. If they do, that could open the door to a decision by the 8th US Circuit Court of Appeals in St. Louis, which in turn could open the door to a US Supreme Court review of sentencing procedure in the world of now-advisory guidelines, or even of the fairness of meth sentences.

Sioux City, IA
United States

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

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 Judge Rejects Ecstasy Sentencing Guidelines

A US District Court judge in New York last Friday refused to sentence an Ecstasy defendant according to federal sentencing guidelines, saying they punish such offenses more harshly than scientifically justified and are based on "selective and incomplete" evidence.

Ecstasy tablets. A federal judge has ruled that Ecstasy offenses are punished too harshly. (Image: Wikimedia.org)
The ruling came in the case of Sean McCarthy, who faced 63 to 78 months in federal prison after pleading guilty to a single count of conspiracy to possess and distribute Ecstasy. But in the first federal court opinion rejecting the Ecstasy sentencing guidelines, District Court Judge William Pauley III instead sentenced him to only 26 months.

The case was the subject of a legal intervention by the American Civil Liberties Union  (ACLU), with assistance from the Multidisciplinary Association for Psychedelic Studies (MAPS). The ACLU Drug Law Reform Project challenged the judge in this case to review the sentencing guidelines and assess whether there was any rational basis for them, and relied on MAPS for a scientific review of the literature on the effects of Ecstasy.

MAPS executive director Rick Doblin had testified to the relative safety of Ecstasy before the US Sentencing Commission when it was setting the guidelines in 2001, but the commission ignored his and other expert testimony in setting guidelines that treated one gram of Ecstasy the same as 500 grams of marijuana when it came to sentencing.

In a December hearing, the ACLU presented the court with scientific evidence from expert witnesses to argue that the Ecstasy guidelines were flawed. Among those testifying was Harvard psychiatrist John Halpern, MD, who had parlayed a MAPS $15,000 grant for a pilot study of the drug's neurocognitive effects into a $1.8 million, five-year National Institute on Drug Abuse (NIDA) that found long-term recreational Ecstasy use did not cause clinically significant cognitive damage.

In his written opinion, issued in May in anticipation of Friday's sentencing, Pauley found that sentencing McCarthy under the guidelines would "give rise to a sentence that is greater than necessary to serve the objectives of sentencing." Judge Pauley also lambasted the Sentencing Commission for "opportunistic rummaging" through the scientific evidence at the time of the 2001 hearing.

That hearing and the resulting guidelines grew out of the Ecstasy Anti-Proliferation Act of 2000, passed in the midst of a drug panic over spreading recreational use of the drug. That law directed the Sentencing Commission to review and increase the penalties for any Ecstasy trafficking or distribution offense.

"The harshness of the Ecstasy guideline affects hundreds of defendants each year in the federal system," said ACLU Drug Law Policy Project staff attorney Scott Michelman. "We are gratified that courageous and thoughtful jurists are addressing this problem, and we hope today’s decision will encourage more judges to take a hard look at this issue. This ruling demonstrates the importance of thoroughly reviewing the empirical basis underlying each of the US sentencing guidelines for drug offenses, to make sure the Guidelines reflect the current state of scientific knowledge."

As for McCarthy, he did 14 months in federal prison before being released in December while awaiting sentencing. He now lives in San Diego, where he works as a home health care nurse, volunteers with the homeless, and cares for his ailing father.

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

Cut Drug War Spending (Action Alert)

Hi Friends,

In a recent Q&A with YouTube viewers, President Obama said that U.S. drug policy focuses too heavily on law enforcement. He also took a huge step forward calling drug legalization an "entirely legitimate topic for debate." If you haven't taken action on the email alert I sent you last week, please take a minute to do so now. We have a great opportunity to cut funding for arrests and incarceration by treating drug use as a health issue instead of a criminal issue.

Sincerely,

Bill Piper
Director, Office of National Affairs
Drug Policy Alliance

We Are the Drug Policy Alliance.

 

 

Tell President Obama to stop wasting money on the failed war on drugs.

Take Action!

Email the President

Dear Friends,

In his State of the Union address a few days ago, President Obama said it is time for the federal government to tighten its belt and stop wasting so much money. One of the biggest – and most destructive – wastes of money is the war on drugs. President Obama is working on a new federal budget – urge him to stop wasting money on the failed war on drugs.

In these times of deficits and budget cuts, let’s send a clear message: no more money for marijuana arrests. No more money for laughably stupid anti-marijuana ads. No more money for random drug testing. No more money for SWAT raids on people's homes for suspected drug law violations. No more money for long prison sentences for low-level, nonviolent drug offenses. No more money for the drug war. Period.

Tell the President that our tax dollars should be spent more wisely.

With your help we can eliminate or cut drug war waste and dismantle the war on drugs. Please take a minute to write the White House and tell President Obama to stop wasting your tax dollars on failed drug policies.

Sincerely,

Bill Piper
Director, Office of National Affairs
Drug Policy Alliance

New Federal Sentencing Guidelines for Crack Cocaine Now in Effect

New federal sentencing guidelines for crack cocaine offenses went into effect Monday, a week after the US Sentencing Commission promulgated them. The commission acted on a temporary basis to implement the Fair Sentencing Act, which was passed into law last summer. It will vote in May to make the changes permanent.

The Fair Sentencing Act was passed in the face of growing uneasiness over racial disparities in federal drug sentences. From the 1980s until the act was passed, people caught with as little as five grams of crack cocaine faced mandatory minimum five-year prison sentences, while people caught with powder cocaine had to be caught with 500 grams before being hit with the mandatory minimum. More than 80% of federal crack prosecutions were aimed at blacks, even though more whites than blacks used crack.

Under the new law, it will take 28 grams of crack to trigger the mandatory minimum five-year sentence. Under the old law, 50 grams of crack earned a mandatory minimum 10-year sentence; under the new law, the threshold rises to 280 grams. That means the old 100:1 sentencing disparity has been reduced to 18:1.

That's not enough for groups like the November Coalition and Families Against Mandatory Minimums, which have fought for years for federal drug sentencing reform. Still on the agenda for reformers is eliminating the remaining sentencing disparity and making the law retroactive to benefit people already serving draconian federal crack sentences.

It's not all good news. The new guidelines will also add months to some drug offender sentences. "Aggravating factors" such as intimidating girlfriends or elderly family members to sell drugs could earn drug gang leaders extra prison time. On the other hand, some low level offenders who were intimidated into participating in drug sales could see months shaved off their sentences.

Washington, DC
United States

Congress: Bill to Do Top-to-Bottom Review of Criminal Justice System, Drug War Passes Senate Judiciary Committee

The Senate Judiciary Committee Thursday approved Sen. Jim Webb's (D-VA) National Criminal Justice Commission Act of 2009 on a unanimous voice vote Thursday. The bill would create a commission to conduct a top-to-bottom evaluation of the country's criminal justice system and offer recommendations for reform at every level.

http://stopthedrugwar.com/files/jimwebb-smaller.jpg
Jim Webb at 2007 incarceration hearing (photo from sentencingproject.org)
Webb has been a harsh critic of national drug policies, and has led at least two hearings on the costs associated with current policies. The bill could create an opportunity to shine a harsh light on the negative consequences of the current policies.

An amendment offered by Sen. Arlen Specter (D-PA) and accepted by the committee stripped out the original bill's lengthy list of negative drug policy "findings" and replaced them with blander language, but left the bill's purpose intact.

Passage out of committee was applauded by sentencing reform advocates. "Families Against Mandatory Minimums (FAMM) commends the Senate Judiciary Committee for recognizing that the American criminal justice system needs an overhaul," said Jennifer Seltzer Stitt, FAMM federal legislative affairs director. "Any comprehensive reform of our criminal justice system must include eliminating mandatory minimum laws. One-size-fits-all mandatory drug sentencing laws enacted in the 1980s are responsible for filling prisons with low-level, nonviolent drug offenders, wasting millions in taxpayer dollars, and destroying public trust in the criminal justice system. The National Criminal Justice Commission can help right these wrongs by recommending mandatory sentencing reform."

The bill's prospects are uncertain. It faces a crowded calendar in the Senate and has made little progress in the House.

Giuliani Robocall Attacks Obama on Drug Sentencing

Voters in several swing states are receiving this recorded message from Rudy Giuliani:

Hi, this is Rudy Giuliani, and I'm calling for John McCain and the Republican National Committee because you need to know that Barack Obama opposes mandatory prison sentences for sex offenders, drug dealers, and murderers.

It's true, I read Obama's words myself. And recently, Congressional liberals introduced a bill to eliminate mandatory prison sentences for violent criminals -- trying to give liberal judges the power to decide whether criminals are sent to jail or set free. With priorities like these, we just can't trust the inexperience and judgment of Barack Obama and his liberal allies. This call was paid for by the Republican National Committee and McCain-Palin 2008 at 866 558 5591. [TPM]

TPM's Greg Sargent points out the incredibly misleading use of the term "mandatory sentencing":

Note that Rudy claims Obama "opposes mandatory prison sentences" for rapists and murders, Rudy is actually referring to Obama's opposition to specific mandatory minimum sentences. By dropping the word "minimum," he's insinuating that Obama opposes mandatory prison sentences in general.


That’s dead-on. The correct term is "mandatory minimum sentencing," but Giuliani reworks the phrase to make Obama’s position on sentencing reform sound more sinister.

Of course, this is all just total nonsense. Giuliani uses the word "liberal" to disparage judges, as though they are a criminal’s best friend and they all want to "set free" sex offenders, drug dealers, and murderers. Moreover, McCain and Obama are on the same page when it comes to sentencing nonviolent drug offenders. Obama’s opposition to mandatory minimum sentencing stems from his concern that we have too many first-time nonviolent drug offenders in prison, a point McCain agrees with. The Republican platform completely omits drug crimes from the list of offenses for which republicans support mandatory minimum sentencing.

As sleazy and disgusting as this is, I just don’t see it going anywhere. At this point in the campaign, this kind of hysterical mudslinging is inherently suspect. There’s just not much to debate in terms of the candidates’ differences on crime issues anyway, so if the McCain campaign wants to go there, they’ll need to create some kind of meaningful distinction. Arguing that Obama wants to free dangerous criminals sounds ridiculous on its face and won’t survive as a talking point without some substance to back it up. There is none.

My prediction: Giuliani’s throwback to the "soft on crime" attack politics of the '80's will accomplish nothing.

(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

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