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Sentencing: Supreme Court to Decide Crack Sentencing Case

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

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

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

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

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

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

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

Alito Free Speech Comments -- a Hint on "Bong Hits 4 Jesus" Case?

Drug WarRant spotted the following comments by Justice Alito, printed by the Washington Post, comments that suggest he might go the right way in the "Bong Hits 4 Jesus" free speech case:
"I'm a very strong believer in the First Amendment and the right of people to speak and to write," [...] "I would be reluctant to support restrictions on what people could say." [...] "it's very dangerous for the government to restrict speech."
View pictures from the March demonstration outside the Court here.
Washingotn, DC
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Bush Seeks to Re-Impose Mandatory Minimums

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CBS News

New ONDCP Video Demonstrates Exactly Why Their Ads Don't Work

"Stoners in the Mist" is a fake documentary from AboveTheInfluence.com in which "Dr. Barnard Puck," clad in safari clothes, observes stoners and performs various experiments on them.

This is worth discussing only because it perfectly illustrates the lack of seriousness that still dominates the marijuana debate. I don’t know how anyone could watch this and conclude that the people who made it are a credible source of information about the effects of marijuana.

Among the highlights:

* A practically comatose stoner fails to notice when a tracking collar is placed around his neck

* Unable to move, two stoners sit on the same couch for 72 hours

* A stoned girl forgets her friend's name and has brownies in her hair

* Despite repeated attempts, a stoner is unable to grasp objects tossed to him at close range

* Categorical statements such as "we have learned through our intensive research that both male and female stoners tend to lack the motivation to maintain proper hygiene" are made.

At the risk of increasing their traffic, you have to watch it to appreciate how far-fetched and derogatory this video really is. It reminded me immediately of D.W. Griffith's racist classic The Birth of a Nation, which glorifies the Ku Klux Klan and depicts African Americans as incoherent slobbering rapists.

So yesterday, when an ONDCP staffer called SSDP and basically threatened to increase the childishness of his office's activities, we just laughed because there's really no lower level of discourse available to them. Two weeks ago, I witnessed ONDCP's David Murray indignantly challenge the seriousness of his critics, yet it is Murray himself who lobbies for more funding to produce utterly banal and sophomoric nonsense like "Stoners in the Mist."

So if the Responsible and Serious Youth Advocates at ONDCP can't figure out why they've alienated everyone, let me spell it out: it's because you're having your own made-up conversation about marijuana that no one else can participate in because it is completely fictitious and insane.

No, this is not a video about the effects of marijuana. It is a parting shot from an entrenched clan of spiteful, sniveling spin-doctors who continue to sling mud in desperation even as their puddle dries up.

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ONDCP Staffer Makes Threatening Phone Call to SSDP Office

Mere hours after SSDP's Tom Angell posted this amusing letter from ONDCP noting that the agency will respond to his FOIA request in 200 years, ONDCP's Assistant General Counsel Daniel R. Peterson called SSDP's office to voice his objections.

Peterson, the author of this ironic typo, accused Tom of being childish and threatened to respond with similar tactics. Incredulous, Tom replied "so does that mean you guys are going to start mentioning us in your blog?" Peterson declined.

Now I've got to admit to some sympathy for the other side here. This was a simple mistake, the severity of which pales in comparison to numerous things ONDCP does deliberately. Tom has previously humiliated the federal government with FOIA requests, so the idea of scrupulously drafting responses to perceived harassment from him must surely frustrate and distract these busy bureaucrats from their book-cooking.

Unfortunately for ONDCP, the unintentional irony of the error makes for good fun in the blogosphere. Stalling, you see, has become a trademark of the federal drug war; a necessary tactic whenever facts come in conflict with the status quo. We've seen this with regards to ASA's Data Quality Act lawsuit, MAPS's marijuana research lawsuit, sentencing reform, needle exchange and marijuana rescheduling. Heck the entire federal drug war is really just a few agencies constantly stalling in the hopes that we'll eventually stop asking so many questions and learn to live with false promises and fake progress.

So when Daniel Peterson tells SSDP that he'll respond to their FOIA appeal in 200 years, it's a perfect Freudian slip. Once again, ONDCP's most truthful and candid remarks occur entirely by accident.
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Just a typo, presumably...

... or could ONDCP really intend to take two centuries to respond to SSDP's Freedom of Information Act request? You decide.
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Court to Weigh Disparities in Cocaine Laws

Washington, DC
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The New York Times

Crack Cocaine Sentencing Headed to Supreme Court

The US Supreme Court has agreed to rule on the U.S. v. Kimbrough case, in which an eastern-Virginia US District Court judge, Raymond Jackson, sentenced a crack cocaine offender -- Derrick Kimbrough -- to a below-guidelines sentence, only to be overruled following an appeal by the government to the 4th Circuit. "Guidelines" here refers to the federal sentencing guidelines (similar to, but not to be confused with the mandatory minimums), in which certain very harsh sentences require only 1/100th the amount of crack cocaine to get triggered as is required of powder cocaine. The "government" here refers to federal prosecutors, who objected that Judge Jackson had based his view that the guidelines sentence for Kimbrough's offense was unreasonable (a requirement for downward departures in the post-Booker ruling federal sentencing world, at least for now) in part on his disagreement over the policy of the harsher sentences for crack offenders. The Court of Appeals in the 4th Circuit agreed, and Kimbrough's sentence was kicked back up to the much-criticized guidelines level. Also before the Court is the case of Victor Rita, another crack cocaine defendant. And the Court has promised to pick a case that deals with the same issue as the one that was at stake in the case of Mario Claiborne, who died earlier this year (info at same link). While there are far more whites who use crack cocaine than blacks, as the Associated Press reported today, "[m]ost crack cocaine offenders in federal courts are black." Why does the 4th Circuit Appeals Court see the intellectual path a judge took to get to a finding of unreasonableness as more important than the self-evidently unreasonable nature of the draconian sentences they are defending? Both Mr. Kimbrough and Judge Jackson are African American, by the way. They are also both veterans -- Kimbrough fought in the first Gulf War; Jackson has a decades-long military career that included a stint as a JAG and includes continuing service as a colonel in the Reserves. The 4th Circuit decision, which is only two paragraphs long, is not published online (or so I've read), but visit the post made about this case on the Sentencing Law and Policy blog and scroll down to the third comment to read it. Our topical archive on the crack/powder cocaine sentencing disparity is online here (though it only goes back to early fall -- you have to use the search engine for earlier stories). We also have a Federal Courts archive here Last but not least, as I mentioned in my previous blog post, click here to write to Congress in support of H.R. 460, Charlie Rangel's bill to reduce crack cocaine sentences to the same level as sentences for powder cocaine.
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Charlie Rangel on Reentry, Crack Cocaine Sentencing and the Vote

Rep. Charles Rangel (D-NY), a one-time drug warrior, made brief remarks on the floor of the US House of Representatives relating to criminal justice, including his support for the Second Chance Act (measures to help people coming out of prison to reenter society successfully) and for restoring the vote to people with past felony convictions, and his sponsorship of H.R. 460 to eliminate the harsher treatment that people convicted for crack cocaine offenses currently receive under the law relative to other cocaine offenses (along with other remarks that don't directly relate to drug policy). (Click here to write your US Representative in support of H.R. 460.) Nothing too huge here, but of interest, and good to see that the chairman of the powerful Appropriations Committee is focused on things like this.
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'US at fault for rising Afghan poppy crop'

Times of India

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