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Mandatory Sentencing Rules Handcuff Judges, Fill Prisons With Nonviolent Drug Offenders
These are some of the organizations working on
sentencing reform and reaching out to prisoners and
their families. You can get involved by contacting
one or more of these:
As the Los Angeles Times reported on August 11, 2009 ("Washington State Revisits Three-Strikes Law"), officials in Washington state are working to change the fates of those serving life in prison as a result of mandatory minimum "three strikes" laws; Washington passed its "law requiring criminals with three serious felony convinctions to spend the rest of their lives in prison" in 1993, becoming the first state to do so (though "California followed suit the next year, and 24 other states now have similar laws"). However, in May of 2009, Governor Chris Gregoire signed the first "appeal for clemency" in the case of Stephen Dozier, "making him the first three-strikes lifer in the nation to be pardoned." Indeed, "the [state's] district attorney's officer, the conservative talk radio host who coauthored Washington's law, and the judge who sentenced [Dozier] all came to agree" recently "that despite the public's demand to keep career criminals behind bars, three strikes shouldn't always mean never getting out."
Dozier received his sentence after being convicted on three separate purse-snatching charges in attempts to feed his crack cocaine habit; in committing his crimes, Dozier "never caused a serious injury or used a weapon," but he nevertheless "disappeared behind bars without the possibility of parole -- along with more than 290 other Washington inmates convicted under the state's tough three-strikes law." Luckily, Dozier is now out of prison, as are at least two other inmates - Al-Kareem Shadeed and Michael Bridges - "who had both been sentenced to life without parole in the mid-1990s for stealing wallets." Dozier, Shadeed, and Bridges have the state of Washington's decision to review "the cases of some nonviolent three-strikes prisoners and mov[e] to release those [...] who probably would not face such a severe penalty today," now that "many states apply [three-strikes laws] more sparingly" and "[p]rosecutors and judges often use the discretion provided them to avoid charging a defendant whose past consists of minor robberies or assualt convictions with a third-strike offense," to thank for their freedom.
However, the aforementioned review does not mean that all prisoners who deserve clemency will receive it. As the article states, "Defense attorneys in Washington say that the clemency process -- the only route to freedom for the state's three strikes inmates -- is cumbersome and expensive," as "the state does not provide public defenders for clemency petitioners." Moreover, "defendants in some Washington counties still face life prison charges for strings of relatively minor crimes," according to Washington Defender Association director Christie Hedman. She told the paper that prosecutors frequently use the threat of three-strikes sentencing "to extract a longer sentence than what otherwise might be imposed."
However, Washington's decision to review three-strikes cases and grant clemency to unfairly sentenced offenders certainly represents a step in the right direction. Hopefully Washington will be as capable a leader in repealing three-strikes mandatory sentencing laws today as it was in enacting them back in the early 1990s.
"Fairness in Cocaine Sentencing Act" Passes House Judiciary Committee
A bill sponsored primarily by U.S. Representative for Virginia, Robert "Bobby" Scott, took another small step forward on July 30, 2009, as the Virginian-Pilot reports ("Bill on Cocaine Sentencing Passes House Panel"). After receiving unanimous approval by the Subcommittee on Crime, Terrorism and Homeland Security last week, the "Fairness in Cocaine Sentencing Act of 2009," which "would make no distinction between the two forms" of cocaine - crack and powder - and effectively put to rest the 100:1 sentencing disparity adopted during the so-called "crack epidemic" of the 1980s, successfully passed through the full House Judiciary Committee on Wednesday, July 29, in a 16-9 vote. The "Fairness in Cocaine Sentencing Act" now passes onto the full House, where it will hopefully gain approval, as well.
House Crime, Terrorism and Homeland Security Subcommittee Unanimously Approves "Fairness in Cocaine Sentencing Act of 2009"
On July 22, 2009 Families Against Mandatory Minimums (FAMM) released a victorious statement ("Subcommittee Votes to Equalize Cocaine Punishments"), announcing that "the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security unanimously passed H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009." If the remainder of their House colleagues and counterparts in the Senate approve the bill as well, all "references to 'cocaine base'" will be "remove[d] from the U.S. Code, effectively treating all cocaine, including crack, the same for sentencing purposes." The bill would - rather than raising penalties for powder cocaine to the same level as those currently in place for crack cocaine or simply ratcheting down the disparity's ratio, as some earlier proposals suggested - entirely equalize crack and powder cocaine sentencing statutes. In short, the Act seeks to all-out "eliminate the 100:1 sentencing disparity between crack and powder cocaine" that has produced massive racial disparities in sentencing and incarceration rates and undermined faith in the criminal justice system since its enactment in 1986. The bill was originally sponsored by Rep. Robert Scott of Virginia and now boasts 22 co-sponsors - including the sponsors and co-sponsors of other recently proposed legislative measures addressing the issue.
Drug policy and sentencing reform advocates, along with civil rights groups, lauded the decision. Executive Director of the Sentencing Project, Marc Mauer, praised Rep. Scott's courage and "applaud[ed his] leadership" simply for introducing the bill in a July 21 letter to the lawmaker. David Borden, Executive Director of the Drug Reform Coordination Network (or StoptheDrugWar.org), expressed excitement in a post for the Drug War Chronicle's blog, and Emily Zia of the ACLU's Washington Legislative Office characterized the vote as a "historic moment" ("Finally Cracking the Disparity: It's About Time!"). FAMM President Julie Stewart stated that "While the vote may be one small step for this bill, it is one giant step for sentencing sanity." She added, "If Congress eliminates the sentencing disparity between crack and powder cocaine, it would not only restore faith in the justice system among the communities most affected by the law, it would reduce prison overcrowding and free up funding for more effective rehabilitation efforts." Stewart also made it clear that "FAMM strongly urges Congress to make the changes retroactive so that people currently serving unjust sentences for crack cocaine can benefit and taxpayers will see even greater savings"
For more about this incredible development and general information on the crack/powder cocaine sentencing disparity, visit the above-mentioned organizations' websites and/or check out Drug War Facts' section on the issue. You can also track the bill yourself via GovTrack.
House Subcommittee Ponders Throwing Out Mandatory Minimums for Drug Offenses
As reported in a July 14, 2009 article by Talk Radio News Service's Aaron Richardson ("House Subcommittee Members Seek to Eliminate Mandatory Minimum Sentences for Drug Offenders"), "The House Subcommittee on Crime, Terrorism, and Homeland Security held a meeting on Tuesday to consider legislation that would eliminate mandatory minimum sentences for drug offenders." In fact, as reported in a press release circulated by Families Against Mandatory Minimums (FAMM) on the same day ("Unusual Allies Call on Congress to Fit the Punishment to the Crime"), the hearing included discussion of three sentencing reform measures: Rep. Scott's H.R. 2934, or "the 'Common Sense in Sentencing Act of 2009;" H.R. 1466, sponsored by Rep. Maxine Waters and dubbed the "Major Trafficking Prosecution Act of 2009;" and the "Ramos and Compean Justice Act of 2009," also known as H.R. 834 and sponsored by Republican Ted Poe of Texas.
While commonalities exist between all three bills, each addresses the issue differently. Scott's bill "would allow courts to sentence below a mandatory minimum where the sentence violates the principals of sentencing defined by statute: punishment, deterrence, incapacitation, and rehabilitation." Waters' proposed legislation "would eliminate all mandatory sentences for drug offenses," and Poe's bill seeks to "amend [federal code] to exempt law enforcement officers from mandatory minimum sentences [...] for possessing or using a firearm in connection with a crime of violence," providing that the weapons are "carried [by officers] to perform their job[s] and [...] used in relation to the performance of [that] job." Thus, Waters' bill would implement the most radical and sweeping changes to mandatory minimum sentencing schemes, while Poe's bill lies on the far side of the spectrum and Scott's sits somewhere slightly left of center.
The Subcommitte heard convincing testimony from such strange bedfellows as activist group FAMM's President and Founder Julie Stewart and Republican Grover Norquist, who heads Americans for Tax Relief. Stewart told members that "What really motivated me to start [FAMM] was not the length of my brother Jeff's five-year mandatory sentence - it was witnessing the judge's inability to give my brother the sentence he wanted to." Stewart added, "At sentencing, the judge stated that his 'hands were tied,' by mandatory sentencing laws," which she says "seemed utterly un-American [and] still does." Although Stewart noted recent rulings that now allow judges to exercise degrees of discretion in certain drug-related cases where mandatory minimums could be utilized, she argued that current "Safety Valve" measures don't go far enough. For his part, Norquist backed up Stewart's assertion that "mandatory minimums are a failure" by reciting the words of late journalist and cultural critc H.L. Mencken: "'There is always an easy solution to every human problem - neat, plausible, and wrong.'" Norquist continued, saying that, "Today, a generation later, it is increasingly clear that adoption of mandatory minimums, while neat and plausible responses to sentencing disparities, was the wrong solution." Norquist also cited the expense of such sentencing policies for taxpayers, testifying that, "Questioning the wisdom of mandatory minimums has nothing to do with being soft on crime. [...] But the government has a responsibility to use taxpayer money wisely[, and] I have concluded that [these] sentencing policies are not worth the high cost to America's taxpayers."
But Subcommittee members remained divided even after sitting through such convincing and bipartisan testimony. Although Waters told Talk Radio News that mandatory minimum sentences "have failed to accomplish the legislative intent of the 1986 anti drug abuse act," represent a "wast[e of] precious government resources," and have "had a desolate impact on the African-American community [...] for many, many years," her Texan colleague Rep. Louie Gohmert stated that "Judges should not be free to sentence felonies as misdemeanors. If there is no bottom to the range there will be more incidents where people will be killed or harmed because of light sentences."
However, with two House bills currently aimed at increasing judicial discretion or repealing mandatory minimums altogether, legislators will have the opportunity to utilize their own discretion if and when the measures move out of Committee. Interested parties can contact their Representatives to express their desire to see these measures progress to a full vote. To more closely follow this issue, keep an eye on FAMM's website and/or track the bills using GovTrack.
Canada's House of Commons Passes Mandatory Minimum Drug Sentencing Measure, Senate to Weigh In
In a disappointing move, the Canadian House of Commons passed "the controversial C-15 mandatory minimum sentencing drug offense bill" in early June of 2009, according to the Drug War Chronicle's June 12 feature article ("In Bold Step Backward, Canadian House of Commons Passes Mandatory Minimum Drug Sentencing Bill"). The Chronicle reports that, "Bowing to the wishes of [...] Prime Minister Stephen Harper, Liberal Party Members of Parliament (MPs) joined Monday with Harper's Conservatives" to approve the measure after an unsuccessful filibuster attempt by opposing NDP and Bloc MPs. If enacted, the bill would impose mandatory minimum sentences on certain drug crimes - including those of the nonviolent variety - in a misguided attempt to target "serious drug traffickers, the people who are basically out to destroy our society," as Justice Minister Rob Nicholson explained.
Opponents of the measure, however, dispute Nicholson's claim. As the Chronicle writes, "MP Libby Davis (NDP-Vancouver East) told Vancouver's Cannabis Culture magazine [that] 'The evidence shows very, very strongly [...] that mandatory minimum sentencing is not an effective policy when it comes to drug crime.'" According to "Vancouver marijuana activist and Cannabis Culture publisher Marc Emery, [...] 'Mid and upper-level traffickers will get no particular increase in punishment, because a major dealer would already get six months or a year for any kind of trafficking.'" He asserted that the measure would instead affect "people who wouldn't normally go to jail" and that young people would comprise the vast majority of those new prisoners.
Although, according to the Chronicle, the Canadian Senate - where the bill next stops - "typically -- but not always -- defers to the House" in legislative affairs, opponents of the measure hope but do not necessarily expect that the Senate will "act to block the passage of C-15" or at least "kill the bill by refusing to act on it before new elections are called." If the Senate does not exercise the above mentioned options, however, Canada will take a rare step backward by enacting draconian, harmful, and ineffective mandatory minimum drug policies just as other nations - including the United States - are beginning to realize the negative consequences such measures carry.
Majority of Americans Oppose Mandatory Minimum Sentencing
A recent poll indicates that American attitudes regarding mandatory minimum sentencing for drug offenders may be experiencing a dramatic shift toward individualized sentencing. According to the Christian Science Monitor September 25, 2008 article, ("Poll: 60 percent of Americans oppose mandatory minimum sentences") "In a new poll, some 60 percent of respondents opposed mandatory minimums for nonviolent crimes, including a majority of both Democrats and Republicans. Nearly 80 percent said the courts are best qualified to determine sentences for crimes, and nearly 60 percent said they'd be likely to vote for a politician who opposed mandatory minimum sentences."
The article states, "The current spate of mandatory minimums has its root in the crime wave of the 1980s, when fears about crack cocaine, in particular, led lawmakers to draft tougher measures to deter dealers. Much attention in recent years has focused on the disparity between the minimums meted out for crack cocaine - often connected with African-American offenders and once believed to be more dangerous than powder - and the powder form. Experts now say the two forms are equally dangerous. Those possessing five grams of crack cocaine - versus 500 grams of powder cocaine - face a mandatory minimum of five years. Last year, the US Sentencing Commission got a reduction of some sentencing guidelines for crack cocaine, sparking a controversy about crack offenders made eligible for release, but the minimums remain the same."
The article adds, "FAMM's new report argues that there's no evidence mandatory minimums have helped reduce drug crime, and in fact, often focuses law-enforcement efforts on small-time players rather than drug kingpins. It also argues that the sentences have imposed significant costs on the system, by putting nonviolent offenders in jail longer than appropriate.'This isn't as volatile an issue as it was in the 1980s, and we're a lot better educated than we were,' says Molly Gill, the report's author. She points to the first time Congress enacted mandatory minimum sentences for drug crimes in 1951 with the Boggs Act - which made no distinction between drug users and traffickers - and later repealed them in 1970 when it was clear they weren't working. Today, Ms. Gill sees two potential solutions: repealing the minimums entirely, which would leave the sentencing guidelines in place but allow for judicial discretion, or expanding the existing 'safety valve,' which allows judges to disregard the minimums under certain criteria."
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California Governor Arnold Schwarzenegger has dropped plans to ease prison overcrowding through the early release thousands of nonviolent offenders. According to the Bureau of Justice Statistics, California's prison system holds twice as many inmates as it is designed to hold.
The Sacramento Bee reported on May 13, 2008 ("Schwarzenegger Drops Plan for Early Release of 22,000 Inmates") that "Gov. Arnold Schwarzenegger has dumped his plan to release about 22,000 lower-risk inmates from prison before they complete their terms, The Bee learned Monday. The revised budget he will present on Wednesday will jettison the plan, which would have freed prisoners doing time for crimes such as drug possession and car theft who had less than 20 months to go on their terms. The governor had sought the change as part of a 10 percent, across- the-board general fund budget cut to deal with a multibillion-dollar deficit. His plan was unlikely, however, to win support in upcoming budget negotiations. Not a single legislator in the state had expressed support for the idea. Press secretary Aaron McLear confirmed that Schwarzenegger will drop the early release plan but declined to comment further."
According to the Bee, "Along with early release, the administration had sought to achieve budget savings through what it called a 'summary parole' plan. Schwarzenegger intends to stick with that piece of his proposal. Offenders who violate their parole conditions but don't commit new crimes wouldn't be returned to prison under that plan. They would still be subject to warrantless searches by local law enforcement. While the governor is planning to withdraw the early release plan, efforts to cap the prison population are still the subject of ongoing litigation in the federal courts. 'There's more than one way to skin a cat,' said Don Specter, director of the nonprofit Prison Law Office in San Rafael. His firm is representing inmates in cases where the state's provision of medical and mental health care in the prisons has been found to be unconstitutional."
The Bee noted that "Critics of the state prison system had seen the early release proposal as a possible opening to a wholesale overhaul of California's approach to handling criminals. Dan Macallair, the executive director of the Center on Juvenile and Criminal Justice, expressed disappointment with the governor's decision to back away from early release. "The correctional crisis in California cannot be solved through the normal political processes of Sacramento," Macallair said. "This is just another example of that. Nobody has the courage to do the right thing." California's prisons are jammed to about twice their designed capacity. The overall prison population is a little more than 170,000."
Sentencing Commission: Inmates Eligible For Sentencing Reduction Mostly Small-Time, Nonviolent Offenders
An analysis by the US Sentencing Commission reveals that most of the inmates in the federal prison system who may be eligible for a reduction in sentence due to the recent reforms of the crack versus powder cocaine penalty disparity are nonviolent, low-level offenders. This directly refutes assertions being made by US Attorney General-for-the-moment Michael Mukasey as he argues for legislation to repeal the reforms.
The Washington Post reported on Feb. 22, 2008 ("Crack Offenders Set For Early Release Mostly Nonviolent, Study Says") that "Most of the more than 1,500 crack cocaine offenders who are immediately eligible to petition courts to be released from federal prisons under new guidelines issued by the U.S. Sentencing Commission are small-time dealers or addicts who are not career criminals and whose charges did not involve violence or firearms, according to a new analysis by the commission staff. About 6 percent of the inmates were supervisors or leaders of drug rings, and about 5 percent were convicted of obstructing justice, generally by trying to get rid of their drugs as they were being arrested or contacting witnesses or co-defendants before trial, according to the analysis being circulated on Capitol Hill by the commission to counter Bush administration assertions that the guidelines would prompt the release of thousands of dangerous criminals. About one-quarter of these inmates were given enhanced sentences because of weapons charges, though the charge can apply to defendants who were actually not carrying a gun or a knife but were with someone who was armed. About 18 percent of the offenders' sentences were reduced because they were arrested and charged for the first time, were forced into a drug ring by someone such as a boyfriend, were unwittingly caught up in a drug operation during a police raid, or for some other reason. The largest group -- 41 percent -- consists of small-time crack offenders who do not fall under any of the criteria that would cause authorities to increase their sentences or have them reduced."
According to the Post, "The figures are at odds with the characterization of the inmates by Attorney General Michael B. Mukasey, who would like Congress to pass legislation voiding the U.S. Sentencing Commission policy before it takes effect March 3. 'Many of these offenders are among the most serious and violent offenders in the federal system, and their early release . . . at a time when violent crime had increased in some communities will produce tragic but predictable results,' Mukasey said at a recent House Judiciary Committee hearing. The staff analysis indicated that about 6 percent of the inmates' sentences were increased because they were supervisors or leaders of a drug crew of four or more, 6 percent of prisoners' sentences were enhanced for arms specifications, and 1 percent were considered career criminals. The findings were consistent with a U.S. Sentencing Commission report to Congress in May that showed that 90 percent of federal crack cases did not involve violence. Only 5 percent involved a threat, and even fewer involved injury or death."
The Post noted that "Crack offenders serve prison terms that are up to eight times as long as those of powder cocaine offenders because of a sentencing disparity mandated by Congress under the 1986 Anti-Drug Abuse Act. The law created a 100-to-1 ratio between crack and powder cocaine offenses, meaning that five grams of crack -- about the size of two sugar cubes -- drew the same mandatory minimum sentence as 500 grams of powder. Many activists, federal public defenders, probation officers and federal judges have said the disparity is racially discriminatory. The overwhelming majority of crack cocaine offenders are black, while most powder cocaine offenders are white or Latino. Under pressure, the commission moderately reduced the guidelines for future crack offenders in March. The guidelines went into effect in November after Congress declined to intervene. The next month, the commission decided to make the guidelines retroactive so that current inmates could petition to reduce their sentences. The Justice Department opposed guideline reductions, but the commission pressed on. Last month, the commission created a list of 1,508 inmates who would be eligible for immediate release if their sentences were reduced under the guidelines and passed the names to the chief judge in each judicial district. Michael S. Nachmanoff, a lawyer who studied the inmate list for the Eastern District of Virginia, which has the largest number of crack cases eligible for sentence reduction, and found that only 15 prisoners have a legitimate chance for release because of restrictions. The reductions are so moderate, he said, that the inmates would leave prison only a few months before they were scheduled to be released without them."
The US Attorney's office in Buffalo, NY, has decided to not try enforcing waivers that would deny inmates serving federal time for crack offenses the ability to apply for a reduction in sentence now that Congress and the US Sentencing Commission have allow such a reduction. The office was one of only two in the country which used such waivers.
The Buffalo News reported on Feb. 13, 2008 ("Crack Sentence Cuts Won't Be Opposed") that "U.S. Attorney Terrance P. Flynn will not oppose reductions in crack sentences based on a legal waiver that is routinely included in plea agreements filed in the federal courts of Buffalo and Rochester. 'After a lot of discussion, this decision was made in the interest of justice, in the interest of national uniformity of sentencing and in the interest of not tying up the courts with a lot of additional litigation,' said Joseph M. Guerra III, chief of drug prosecutions in Flynn's office."
According to the News, "The federal court system has 94 districts. 'We recently learned that our district and possibly one other were the only ones that had this waiver in their plea agreements,' Guerra said. 'That goes against the goal of national uniformity in sentencing.'"
The News noted that "Convicts who signed the waiver agreed they would never ask for reduced sentences, even if future changes in the law allowed them to do so. Several defense attorneys and the president of the Buffalo Branch of the National Association for the Advancement of Colored People had been upset that Flynn's office was considering enforcing the waiver. Authorities estimate that 20,000 people who are serving federal crack sentences throughout the nation will request sentence reductions because of the changes enacted by Congress and the U.S. Sentencing Commission. That number will include an estimated 200- plus men and women who were convicted in federal courts in Buffalo and Rochester. Judges will begin considering the requests March 3, according to Richard J. Arcara, chief of the federal judges in Western New York. Arcara said rulings will be made on a 'case-by-case basis.'"
An attempt by the US Attorney General to roll back recent revisions to the sentencing guidelines which were enacted to address the crack vs. powder cocaine sentencing disparity has been denied.
The Los Angeles Times reported on Feb. 13, 2008 ("Mukasey's Bid on Crack Releases is Denied") that "Senate Democrats on Tuesday rebuffed Atty. Gen. Michael B. Mukasey's request for legislation that would cancel the U.S. Sentencing Commission's recent decision to retroactively apply lower jail terms to as many as 19,500 crack cocaine offenders sentenced under tough "war on drugs" legislation from the 1980s. About 1,600 of those inmates will be eligible to apply for reduced sentences this year, according to the commission. The new guidelines take effect March 3."
According to the Times, "Current federal law requires that a powdered cocaine offender possess 100 times more of the drug than a crack cocaine offender to receive the same sentence. For example, 500 grams of powdered cocaine -- but only 5 grams of crack -- calls for a mandatory minimum sentence of five years. The original disparity stems from the 1986 Anti-Drug Abuse Act, which was enacted amid fears that the smoked drug was more addictive than its powdered counterpart and thus was more likely to be associated with violent crime. 'No other drug is punished by mode of ingestion,' James E. Felman, a Florida criminal lawyer and chairman of the American Bar Assn. sentencing committee, told the panel Tuesday."
The Times noted that "But during Tuesday's Senate hearing before the judiciary subcommittee on crime and drugs, Sen. Patrick J. Leahy (D-Vt.) accused Mukasey of creating public fear that 'dangerous drug offenders will be instantaneously and automatically set free to prey on hapless communities.'"
Federal rules now allow many who had been sentenced to harsh mandatory minimum sentences for crack to apply for a reduction in their sentences. A waiver of this potential right which had been routinely included in some federal plea agreements is expected to prevent some from applying.
The Buffalo News reported on Feb. 11, 2008 ("Battle Shapes Up Over Crack Sentences") that "Federal court officials took action last year to give a break to people convicted on federal crack cocaine charges. They enacted changes after years of complaints that crack sentences were exceptionally harsh and that African-Americans from poor, inner-city neighborhoods were the ones most likely to be convicted. But U.S. Attorney Terrance P. Flynn may oppose requests to reduce the sentences of previously convicted people, based on a legal waiver that is routinely included in federal plea agreements filed in Buffalo and Rochester. Dating to at least 1997, hundreds of federal drug offenders in the region have agreed to the waiver, promising that they would never ask for reduced sentences -- even if future changes in the law allowed them to do so. 'At this point, we haven't decided whether we will try to enforce the waiver,' said Assistant U.S. Attorney Joseph M. Guerra III, Flynn's top aide for drug prosecutions. 'We've talked about the situation with [Justice Department] officials in Washington, and we're waiting for guidance or directives from them.'"
According to the News, "If Flynn's office decides to fight the requests for reduced sentences, that will upset many defense attorneys and Frank B. Mesiah, president of the Buffalo chapter of the National Association for the Advancement of Colored People. By changing the guidelines, Congress and the U.S. Sentencing Commission have already made a clear statement that people convicted of crack cocaine crimes were being sentenced too harshly, Mesiah said. 'It would be wrong for [prosecutors] to challenge that,' Mesiah said. 'If the U.S. attorney follows that policy, he will be adding even more inequities to the system.' Similar comments came from Buffalo defense lawyers James P. Harrington, Mark J. Mahoney and Herbert L. Greenman, all of whom represent many local drug defendants. 'It would be unfair and unfortunate,' Harrington said. 'It would go against the spirit of what Congress and the sentencing commission were trying to do when they decided that these sentences should be reduced.' Harrington is the Buffalo representative on a national panel of attorneys who represent federal defendants who can't afford lawyers."
The News noted that "Ultimately, federal judges will decide on a case-by-case basis if defendants qualify for early release from prison. 'This issue [on the waivers] has not come before us yet. If it does come before us, we'll decide on it,' said Richard J. Arcara, chief U.S. district judge for Western New York. 'There are a lot of complicated issues surrounding the changes in the crack sentences. We're already looking at these issues, and we'll be deciding these cases as expeditiously and fairly as we can. It will be a high priority.' Judges will be looking at each individual's criminal history -- including the amount of drugs involved and whether any violent crimes were also involved -- before deciding whether to reduce sentences, Arcara said."
The Supreme Court will hear a case later this year with the potential to impact the crack vs. powder cocaine mandatory minimum sentencing disparity in federal law. The New York Times reported on June 12, 2007 ("Court To Weigh Disparities In Cocaine Laws") that "The Supreme Court, expanding its review of federal criminal sentencing, agreed Monday to consider the proper judicial response to the sharp disparity in the way the law treats crack cocaine and cocaine powder. The court will address a growing rebellion among judges who have been issuing sentences lighter than those called for under the federal sentencing guidelines for criminals convicted of crack cocaine offenses. The federal appeals courts are divided on whether judges are permitted to exercise such discretion. The lower courts have been trying to ease the impact of a 21-year-old federal law that imposes the same five-year mandatory minimum sentence for possession of 5 grams of crack, a bit more than a fifth of an ounce, as for 500 grams, or 1.1 pounds, of cocaine powder. The 10-year mandatory sentence in the law incorporates the same 100-to-1 ratio. It is imposed for possession of 50 grams of crack, about one and three-quarters ounces, and 5 kilograms of powder, 11 pounds. The federal sentencing guidelines have in turn incorporated the same disparity in the formulas by which a judge is supposed to build on the mandatory minimum and calculate an offender's actual sentence."
According to the Times, " From among many cases pending at the Supreme Court on the question, the justices selected an appeal filed by the federal public defender's office in Virginia on behalf of a man from Norfolk, Derrick Kimbrough, who pleaded guilty to two counts of possessing and distributing more than 50 grams of crack cocaine. Taking account of Mr. Kimbrough's criminal history and other factors, including a gun possession charge that added a mandatory five-year sentence, the federal guidelines called for a range of 19 to 22 years. Judge Raymond A. Jackson of Federal District Court, pronouncing such a sentence 'ridiculous' and 'clearly inappropriate,' refused to impose it. Judge Jackson observed that Mr. Kimbrough had served in combat in the Persian Gulf war, had received an honorable discharge and was gainfully employed, with just misdemeanors and no previous felonies on his record. Noting that the federal sentencing law requires judges to 'impose a sentence sufficient, but not greater than necessary' to achieve the statute's purposes, Judge Jackson gave Mr. Kimbrough 15 years, the lowest possible given the statutory mandatory minimums. The United States Court of Appeals for the Fourth Circuit, in Richmond, rejected Judge Jackson's reasoning and ordered resentencing."
The Times noted that "The Supreme Court's failure to spell out in that decision, United States v. Booker, exactly what it meant by 'advisory' has caused confusion throughout the criminal justice system. The court had hoped to resolve much of the confusion this term by hearing two cases presenting different aspects of the issue. One case, Rita v. United States, No. 06-5754, which the justices are likely to decide in the next few weeks, raises the question of whether a sentence within the guidelines range should be presumed reasonable. The second case, Claiborne v. United States, No. 06-5618, evaporated last month when the defendant, Mario Claiborne, who was free after serving his sentence, was shot to death in St. Louis. His case raised the question of what kind of explanation a judge has to give to justify a sentence below the guidelines range. On Monday, the justices accepted a new case with similar facts as a substitute. A judge gave the defendant, Brian M. Gall, a sentence well below that called for by the guidelines, three years' probation rather than three years in prison. Mr. Gall, while a college student in Iowa, had been part of a ring that sold the illegal drug Ecstasy. He left the ring after eight months, finished college, moved to Arizona, started a business and lived an evidently crime-free life. The trial judge found that because Mr. Gall had learned his lesson and reformed, prison time would serve no purpose. But the United States Court of Appeals for the Eighth Circuit, the same St. Louis-based court that issue the decision that had been under review in the Claiborne case, ordered resentencing, finding that such an 'extraordinary' departure from the guideline range required an 'extraordinary' justification. The justices will hear Mr. Gall's appeal, Gall v. United States, No. 06-7949, after the new term begins in October."
The case, Kimbrough v United States, is Case No. 06-6330.
The US Sentencing Commission released its 2007 report to Congress titled Cocaine and Federal Sentencing Policy on May 14, 2007. As noted in the report's introduction, "Against a backdrop of renewed congressional interest in federal cocaine sentencing policy, the need to update the Commission's prior reports has become more important. The Supreme Courtís decision in United States v. Booker has given rise to litigation and resulted in differences among federal courts on the issue of whether, and how, sentencing courts should consider the 100-to-1 drug quantity ratio. Congressional enactment of a uniform remedy to the problems created by the 100-to-1 drug quantity ratio, as opposed to the employment of varied remedies by the courts, would better promote the goals of the Sentencing Reform Act, including avoiding unwarranted sentence disparities among defendants with similar criminal records who have been found guilty of similar criminal conduct." (pp. 1-2)
The report explains that "Because of the 100-to-1 drug quantity ratio, the sentencing guideline penalties based solely on drug quantity (i.e., the base offense level provided by the Drug Quantity Table in the primary drug trafficking guideline, USSG ß2D.1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy)) are three to over six times longer for crack cocaine offenders than for powder cocaine offenders with equivalent drug quantities, depending on the exact quantity of drug involved. As a result of both the statutory and guideline differentiation between the two forms of cocaine, as well as other factors examined in Chapter 2, the resulting sentences for offenses involving crack cocaine are significantly longer than those for similar offenses involving powder cocaine for any quantity of drug." (p. 3)
The report notes that
"Current data and information continue to support the core findings contained in the 2002 Commission Report, among them: (1) The current quantity-based penalties overstate the relative harmfulness of crack cocaine compared to powder cocaine. (2) The current quantity-based penalties sweep too broadly and apply most
often to lower level offenders. (3) The current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality. (4) The current severity of crack cocaine penalties mostly impacts minorities.
The Commission recommended:
A copy of the US Sentencing Commission's report can be downloaded by clicking here.
In April 2007, the US Sentencing Commission recommended that the sentencing guidelines regarding crack be changed to bring them more into parity with sentencing rules regarding powder cocaine. According to the USSC in its April 27, 2007 news release
("US Sentencing Commission Votes To Amend Guidelines For Terrorism, Sex Offenses, Intellectual Property Offenses, and Crack Cocaine Offenses"):
According to the Commission, "It will submit to Congress on or before May 15, 2007, a report on federal cocaine sentencing policy. The report will set forth current data and information that continue to support the Commissionís consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere. The Commission also will make recommendations to Congress in the report for modifications to the statutory penalties for crack cocaine offenses. At todayís meeting, the Commission expressed its firm desire that this report will facilitate prompt congressional action addressing the 100-to-1 crack-powder drug quantity ratio."
The Commission news release noted that " The text of the Commissionís amendments and its accompanying 2007 report to Congress, Cocaine and Federal Sentencing Policy, will be available in the coming weeks on the Commissionís website, www.ussc.gov. The Commission was established by Congress in 1985 to develop national sentencing guidelines for the federal courts. Any amendments made by the Commission to the guidelines must be submitted to Congress on or before May 1 of each year and become effective on November 1 if not disapproved by Congress."
Legislation to repeal Delaware's mandatory minimum laws is making its way through that state's legislature. The News Journal reported on April 4, 2007 ("House OKs Change In Mandatory Sentences") that "Legislation to repeal Delaware's minimum mandatory drug sentences and restore judges' ability to sentence on a case-by-case basis passed the state House 26-13 Tuesday, despite charges by police and prosecutors that the bill would hamstring law enforcement."
According to the News Journal, "Gov. Ruth Ann Minner said she supports the bill's concept, although she'll withhold final judgment until she sees whether the Senate amends the measure and how those changes, if they come, are handled by the House. 'One of the points that really wasn't made was that our prisons are overcrowded and this might do something to help,' Minner said. H.B. 71 is backed by defense attorneys and Stand Up for What's Right and Just, a Wilmington-based advocacy group that has lobbied unsuccessfully for similar bills in the past. Attorney General Beau Biden and the Delaware Police Chiefs Council oppose it."
The News Journal noted however that "Opponents of House Bill 71, sponsored by House Speaker Terry Spence, R-Stratford, are pinning their hopes on the Senate, where they say they have a chance of stopping the bill in its tracks. Senate President Pro Tem Thurman Adams Jr., D-Bridgeville, said H.B. 71 is likely to face problems in his chamber. 'I'd say it's a toss-up at this point,' Adams said. 'I personally don't like it. ... I don't know what's going to happen with it, but it's likely to get some discussion.'"
A federal appeals court upheld the 55 year prison sentence given a Utah man with no criminal record for a minor marijuana charge. The New York Times reported on Jan. 11, 2006 ( "Prison Term Of 55 Years For Drugs Is Upheld") that "A federal appeals court has upheld a 55-year prison term imposed on a Utah man with no criminal record who was convicted in 2003 of selling several hundred dollars worth of marijuana on three occasions. The case of the man, Weldon H. Angelos, a record producer from Salt Lake City who was 22 at the time of his crime, has become a benchmark in the debate about sentencing rules and justice. The trial judge in the case complained in issuing the sentence, which was required by federal statutes, that he thought it excessive, and 29 former judges and prosecutors agreed, in a brief filed on Mr. Angelos's behalf. But a three-judge panel of the 10th Circuit Court of Appeals, in a decision issued here late Monday, rejected those arguments. The sentence properly reflected the will of Congress, the court said, and was not cruel or unusual punishment. Mr. Angelos was reported by a witness to have been armed with a pistol during two of the drug sales - and requiring stiffer sentences in cases where drugs and violence are linked, the court said, is legitimate social policy. 'Although the district court concluded that Angelos's sentence was disproportionate to his crimes, we disagree,' the court said. 'In our view, the district court failed to accord proper deference to Congress's decision to severely punish criminals who repeatedly possess firearms in connection with drug-trafficking crimes, and erroneously downplayed the seriousness of Angelos's crimes.' Mr. Angelos's lawyer, Jerome H. Mooney, said the decision would be appealed, either for reconsideration by the full Court of Appeals here in Denver or directly to the United States Supreme Court."
According to the Times, "The court also said that Mr. Angelos's lack of a criminal record appeared to be more about luck in not getting caught than any indication of innocence. 'The evidence presented by the government at trial clearly established that Angelos was a known gang member who had long used and sold illicit drugs,' the court said. 'In addition, the government's evidence established that Angelos possessed and used a number of firearms, some stolen, to facilitate his drug-dealing activities.'"
The Times noted that "Mr. Mooney, the defense lawyer, said he thought Mr. Angelos was a victim of politics and of courts that he called too willing to bend to political winds. 'How deferential to Congress should they be on these issues?' he said. 'Courts are uncertain and are erring on the side of being more conservative than I think they ought to be.'"
The State of New Jersey's Commission to Review Criminal Sentencing released a report on New Jersey's drug free school zones. The Newark Star-Ledger reported Dec. 8, 2005 ( "Experts Want To Shrink Drug-Free School Zones") that "'We stand here as a united group saying that the present drug zone laws do not protect our children,' Barnett Hoffman, the retired judge who chairs the New Jersey Commission to Review Criminal Sentencing, said at a Trenton news conference. The commission includes prosecutors and defense lawyers, as well as representatives of the Department of Corrections, parole bureau, judiciary and public. 'The laws as written are just plain ineffective. The cities themselves have become school zones,' Hoffman said. 'The point is these huge zones actually dilute the special protection the zones are supposed to provide.' Assistant Attorney General Ronald Susswein, one of the architects of the original 1987 drug-free school zone law, said: 'We wanted to create safe harbors for schoolchildren and educators by literally pushing the pushers away from these protected areas.' But he said the law 'failed' in cities like Newark because if drug dealers move far enough away from one school to escape the heavier punishment, they move into an adjoining school zone. 'They're going to get the same punishment anywhere in these towns, so they're going to pick the best spot,' Susswein said."
According to the Star-Ledger, "If the zones were working as intended, there should be a spike in arrests just outside the 1,000-foot circle, where dealers know they face lighter punishment, Hoffman explained. Instead, there were actually fewer arrests ( 252 ) made 1,000 to 1,200 feet from schools than at 700 to 800 feet ( 266 arrests ). There were 274 arrests within 200 feet of a school. Hoffman said that shows the zone has 'no impact' in deterring the peddling of drugs near schools. What it has done, he said, is to impose particularly harsh penalties on minorities who sell drugs in densely populated areas blanketed by drug-free zones. 'Nearly every offender, 96 percent' of those in prison for violating the drug-free zones, 'is either black or Hispanic,' Hoffman said. Susswein said shrinking the zones to 200 feet would make them 'meaningful.' Hoffman said the 15-member commission unanimously agreed that 200 feet is the right distance because it keeps dealers from setting up shop next to a school but is close enough that they can see a school is nearby and know they should move away. The commission also proposes increasing the maximum penalties for drug dealing inside a drug-free zone to 10 years in prison, up from five. It would eliminate the existing mandatory minimum sentences, giving judges more discretion."
The Star-Ledger noted however that "A bill implementing the panel's recommendations was approved Monday by the Assembly Law and Public Safety Committee. Yesterday, however, Sen. Bernard Kenny ( D-Hudson ), a member of the commission, said the measure will not pass both houses of the Legislature before the lame-duck session ends Jan. 10. Kenny said the bill needs 'to garner bipartisan support,' which it did not have Monday, when neither of the two Republicans on the Assembly committee supported it, and one questioned why the commission had not proposed allowing each municipality to set its own drug-free zones. Kenny said senators also want assurances that Gov.-elect Jon Corzine will support the measure. He said he will 'prefile' a bill today for consideration in the new two-year legislative term that begins at noon Jan. 10."
A PDF copy of the Commission's "Report On New Jersey's Drug Free Zone Crimes & Proposal For Reform" is available on the CSDP website or directly from the New Jersey Commission to Review Criminal Sentencing.
In Dec. 2005, the Legal Aid Society of New York released a devastating analysis of recent reforms to New York's infamous Rockefeller drug laws. The New York Times reported on Dec. 15, 2005 ( "Few State Prisoners Freed Under Eased Drug Law") that "When Gov. George E. Pataki signed a law a year ago reducing what he called "unduly long sentences" for drug crimes, he predicted that hundreds of nonviolent drug offenders would be released from prison. But so far, only 142 prisoners - about 30 percent of those originally eligible for new sentences under the revised law - have been freed, according to a report released yesterday by the Legal Aid Society."
According to the Times, "The new sentencing provisions were the most widely heralded aspect of the Drug Law Reform Act of 2004, which changed the mandatory sentencing laws imposed in 1973 when Nelson Rockefeller was governor. Those laws had been criticized for requiring judges to impose a sentence of 15 years to life on anyone convicted of selling two ounces or possessing four ounces of narcotics, whether they were drug lords or low-level couriers. The new law increased the amount of drugs that trigger long sentences, and reduced those sentences to 8 to 20 years. And it allowed prisoners serving the longest prison terms to ask to be resentenced under the new standards."
The Times noted that "A major reason that relatively few prisoners have been released is that district attorneys are still opposing resentencing requests and, in some cases, asking judges to impose long prison terms, said William Gibney, a senior attorney for Legal Aid who wrote the report."
A copy of the report, "One Year Later: New York's Experience With Drug Law Reform," can be downloaded from the CSDP website.
Democrats in the US House of Representatives have spoken up against new mandatory minimum sentences for methamphetamine which are included in legislation being pushed by anti-drug zealots in Congress. The Oregonian reported on Sept. 28, 2005 ( "Proposal For Meth Sentences Draws Fire") that "House Democrats on Tuesday sharply criticized a bill designed to curb the availability of methamphetamine in the United States, singling out a provision that would impose tougher prison sentences for trafficking. At a hearing in the House Judiciary Subcommittee on Crime, the Democratic lawmakers said incarcerating drug dealers for longer terms has failed to stop drug addiction over the past two decades, while ruining lives in poor communities. 'Whether it's crack or meth, we've got a drug problem in America, and it's not going to be solved with mandatory minimum sentencing,' said Rep. Maxine Waters, D-Calif."
The opposition may prove Quixotic. According to the Oregonian, "The opposition is unlikely to derail House Resolution 3889, which enjoys the support of House Republican leaders and the bipartisan Congressional Meth Caucus. The chairman of the crime subcommittee, Rep. Howard Coble, R-N.C., is a co-sponsor, and spokesman Ed McDonald said Coble hopes to schedule a vote soon. Still, Tuesday's hearing made clear that any vote in committee or on the floor likely would be far from unanimous. Supporters had hoped to design a meth bill free of controversial elements that would slow its progress. The hitching point in the bill is an expansion of the types of meth cases in which defendants could receive 10- and 20-year mandatory minimum sentences. For example, current law imposes a 10-year sentence for trafficking in 50 grams of meth. Under the bill, possession with intent to sell 5 grams of meth would draw a 10-year term. Five grams is about 50 doses of meth."
The Oregonian reported that "Democrats, who are in the minority in Congress, used the hearing to fire pointed questions about mandatory minimums at sponsors of the bill and an official from the U.S. Drug Enforcement Administration. Historically, there has been a racial component to discussions of sentences for drug crimes. African American lawmakers have long criticized the disparate impact on black communities created in the 1980s when Congress enacted longer sentences for small amounts of crack cocaine. Members of the crime panel on Tuesday said that longer prison terms were an equally ineffective way to deal with meth, whose users are overwhelmingly white. Rep. Bobby Scott, D-Va., the committee's top Democrat, said Congress has repeatedly tried the punitive approach with meth and other drugs -- and failed. 'Meanwhile, the epidemic has grown exponentially,' Scott said. Scott, an attorney, reserved his closest cross-examination for Joseph T. Rannazzisi, deputy chief of enforcement operations for the DEA. After a relentless series of questions, Scott concluded, 'You did not reduce the incidence of crack use by having a draconian five-year mandatory-minimum sentence, did you?' 'Putting it that way,' Rannazzisi said, 'I guess not.' Rep. Bill Delahunt, D-Mass., said punishment should be balanced by additional money to treat addictions. 'There's no reference in the legislation about treatment,' Delahunt said. 'You've got to attack this on the demand side.' Rep. Mark Kennedy, R-Minn., a sponsor of the bill, defended the tougher criminal penalties by saying Congress must send a 'send a strong signal' to drug traffickers. 'We've been sending messages,' Delahunt responded. 'I think there should be now conclusive evidence that just simply enhancing penalties is in no way going to reducing the trafficking in a particular controlled substance.'"
The Oregonian noted that "Most of the bill deals with increased international regulation of companies that buy and sell pseudoephedrine, the main meth ingredient. Little of that language came under attack at the hearing. And an industry association, the Food Marketing Institute, submitted a statement in support of the bill, praising international controls on pseudoephedrine. Waters also made clear that she did not have a problem with precursor control or curtailing meth production in Mexico. 'Come in here and talk to me about (Mexico's president) Vicente Fox and what you're going to do with them and trade if they don't do something about the transporting of stuff across the border from the superlabs in Mexico,' Waters said. 'But just to talk about young people who use this meth to get high going to penitentiaries, that's not doing anything to make me believe it's going to be helpful.'"
A senior member of Congress made waves in July when it was revealed that he had written to a federal appeals court and to the Justice Department to complain about a sentence given a low-level, first-time drug offender. The Chicago Tribune reported on July 10, 2005 ( "Lawmaker Prods Court, Raises Brows") that "In an extraordinary move, the chairman of the House Judiciary Committee privately demanded last month that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn't believe a drug courier got a harsh enough prison term. Rep. James Sensenbrenner ( R-Wis. ), in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong. He demanded 'a prompt response' as to what steps Flaum would take 'to rectify the panel's actions' in a case where a drug courier in a Chicago police corruption case received a 97-month prison sentence instead of the at least 120 months required by a drug-conspiracy statute."
( A PDF copy of the Congressman's correspondence can be viewed here.)
The judge seemed more than merely unconvinced by the Congressman's reasoning. The Tribune noted that "Flaum declined comment on the situation, saying he does not publicly discuss matters pending before the court. He sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case. But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong."
The faulty reasoning may not have been entirely the fault of the Congressman. The Tribune reported that "Jay Apperson, the congressional counsel who brought the ruling to Sensenbrenner's attention, added: 'We can't have judges violating the law.'"
According to the Tribune, "Apperson, who is chief counsel of a House Judiciary subcommittee, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties. Further, the letter may be an intrusion on the Constitution's separation-of-powers doctrine, or, at least, the latest encroachment by Congress upon the judiciary, analysts said."
The controversy relates to the sentence given a convicted courier in the drug operation. Beyond the fact that the Congressman's letter violated court rules, there is also the question of appearances. The Tribune reported that "Apperson, who is chief counsel of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, insisted the request for the court to change its ruling was 'appropriate. . . . This is the committee with oversight of the judiciary--that's exactly what we are supposed to do.' At issue was the court's decision to uphold a 97-month prison term for Lissett Rivera, who was convicted for her role as a courier in a drug ring headed by former Chicago Police Officer Joseph Miedzianowski. Sensenbrenner said in his letter to Flaum that federal law required the sentence to be 120 months. Contrary to court rules, Sensenbrenner's letter was not sent to Rivera's appellate attorney, Steve Shobat, who received a copy only after the letter was placed in the official court file. 'To try to influence a pending case is totally inappropriate,' Shobat said. 'My client had a very small role in this case, and to think that she is the focus of the head of the House Judiciary Committee? It is intimidating.'"
Not only was the letter inappropriate, the courier's involvement was quite limited so a lesser sentence seemed correct even to the prosecutor in the case. According to the Tribune, "Rivera was convicted, along with other defendants, of participating in a conspiracy to distribute more than 5 kilograms of cocaine--a charge that carries a mandatory minimum sentence of 120 months in prison. Miedzianowski and more than 20 others, including street gang leaders, were convicted of taking part in the distribution of 350 kilograms of cocaine. Evidence at the trial showed that Rivera, who had no criminal record, was personally involved in handling less than 5 kilograms. At sentencing, U.S. District Judge Blanche Manning imposed the 97-month term, citing a 1993 court ruling that allowed that the drug quantity that relates to an individual be taken into account in imposing a sentence less than the minimum required. At the time, federal prosecutor Brian Netols told Manning, 'I think that would be the appropriate sentence.' Shobat appealed, contending the sentence still was too high. The U.S. attorney's office did not appeal the sentence as a violation of the 120-month minimum."
The US Department of Justice's Bureau of Justice Statistics reported on April 25, 2005 ( "Nation's Prison and Jail Population Grew by 932 Inmates Per Week") that "The nation's prisons and jails held 2,131,180 inmates as of June 30, 2004, the Justice Department's Bureau of Justice Statistics (BJS) announced today. Two-thirds were in federal and state prisons, and the other third were in local jails. Jail authorities were supervising an additional 70,548 men and women in the community in work release, weekend reporting, electronic monitoring and other alternative programs. The incarcerated population grew by 48,452 inmates between midyear 2003 and midyear 2004. Jail inmates grew by 3.3 percent, state prisoners by 1.3 percent, and federal prisoners by 6.3 percent. On June 30, 2004, there were an estimated 726 persons per 100,000 U.S. residents in prison or jail."
As reported by The Southern Illinoisan on April 24, 2005 ( "US Prisons Swell By Nearly 900 Inmates Per Week In 2004"): "While the crime rate has fallen over the past decade, the number of people in prison and jail is outpacing the number of inmates released, said the report's co-author, Paige Harrison. For example, the number of admissions to federal prisons in 2004 exceeded releases by more than 8,000, the study found. Harrison said the increase can be attributed largely to get-tough policies enacted in the 1980s and 1990s. Among them are mandatory drug sentences, 'three-strikes-and-you're-out' laws for repeat offenders, and 'truth-in-sentencing' laws that restrict early releases. 'As a whole most of these policies remain in place,' she said. 'These policies were a reaction to the rise in crime in the '80s and early 90s.'"
The story continues:
The Supreme Court, in the wake of its ruling on the advisory-only role of federal sentencing guidelines, ordered the review of hundreds of sentences. The Associated Press reported on Jan. 24, 2005 ( "High Court Orders Review Of Sentencings") that "Justices instructed the lower courts to review more than 400 appeals from defendants sentenced for crimes ranging from drug possession to theft and securities fraud. They had argued that judges had improperly boosted their sentences based on factors that had not come before the jury during trial. The Supreme Court ruled Jan. 12 that the federal guidelines violated a defendant's Sixth Amendment right to a jury trial because the 18-year-old guidelines required judges to make factual decisions that affect prison time, such as the amount of drugs involved in a crime or amount of money involved in fraud. Under the ruling, the guidelines are no longer mandatory but advisory; as a result, federal judges are free to sentence convicted criminals as they see fit, but they may be subject to reversal if appeals courts find them "unreasonable." In all, thousands of cases are expected to be reviewed by the lower courts to determine whether the defendants were harshly punished. That will hinge on what the appeals courts consider "reasonable" - for example, whether the new advisory guidelines set a reasonable range or judges should have wider leeway."
Federal sentencing guideline rules, under fire from judges and rights advocates for years, have taken another hit from the US Supreme Court. CBS News reported on Jan. 12, 2005 ( "Sentencing Rules Under Fire") that "The Supreme Court ruled Tuesday that federal judges have been improperly adding time to criminals' sentences, a decision that puts in doubt longtime sentencing rules. The court, on a 5-4 vote, said that its ruling last June that juries ó not judges ó should consider factors that can add years to defendants' prison sentences applies as well to the 17-year-old federal guideline system. 'This is a huge blow to the federal sentencing guidelines and really to any state sentencing guidelines that allow judges to increase sentences based upon facts that a jury did not hear,' said CBS News Legal Analyst Andrew Cohen. 'The court didn't outright strike down the federal sentencing guidelines but clearly those rules now are in jeopardy.'"
According to CBS, "The justices refused to backtrack from a 5-4 decision that struck down a state sentencing system because it gave judges too much leeway in sentencing. But the high court stopped short of striking down the federal system. Justice Stephen Breyer said the federal sentencing system is at least in part invalid because it forces judges to use the guidelines. About 64,000 people are sentenced in federal courts each year, under a system that had been challenged as unconstitutional in a pair of cases at the Supreme Court."
Another federal judge has come out against mandatory minimum sentencing laws, prompted by the 55-year prison term to which he was forced to sentence a first-time drug offender. As the Deseret Morning News reported on Nov. 17, 2004 ( "Judge Assails Sentencing Laws"), "A Utah federal judge on Tuesday reluctantly imposed a 55-year mandatory-minimum sentence on a first-time drug offender, but not before delivering a scathing rebuke on the sentencing laws that mandate the term. 'To sentence Mr. Angelos to prison for essentially the rest of his life is unjust, cruel and even irrational,' U.S. District Judge Paul Cassell said. That said, however, Cassell said he had no choice but to follow the statutes and sentence 25-year-old Weldon Angelos to prison for more than half a century. But in doing so, he called on President Bush to commute Angelos' sentence to one more in line with his crime. The judge suggested 18 years and asked Congress to revisit the mandatory-minimum laws that required the term. The sentence was handed down in front of a full courtroom of Angelos' family and friends, as well as legal observers, many of whom expected Cassell to declare unconstitutional the mandatory-minimum sentencing laws that governed Angelos' sentence."
According to the Morning News, "Angelos, the founder of the Utah-based rap music label Extravagant Records, initially faced at least a 61 1/2-year sentence for the 16 criminal counts of which he was convicted in December. The bulk of that term -- the 55 years imposed Tuesday -- is based on just three firearms charges for carrying a gun during two drug sales and for keeping additional firearms at his Fort Union apartment. Cassell imposed just one day for the additional 13 drug, firearm and money-laundering charges. The case has garnered the attention of legal experts across the country, who have been following Cassell's moves since June, when he declared the federal sentencing guidelines unconstitutional in the case of a Utah man convicted of child pornography. That ruling came on the heels of a U.S. Supreme Court decision that called the constitutionality of the guidelines into question. Mooney, joined by 29 former legal officials from across the nation, had asked Cassell to find that the onerous mandatory-minimum term in the Angelos case constituted cruel and unusual punishment in violation of the Eighth Amendment. The defense also argued the firearm statute is not applied equally to all criminal defendants, a violation of Angelos' equal-protection rights. And although Cassell appeared to agree with the defense on nearly every point, the judge, in a lengthy opinion released immediately following Tuesday's hearing, said his analysis failed to meet the legal threshold required to find a statute unconstitutional. Thus, he said, he was required to impose the 'Draconian' prison sentence."
The Morning News noted that "Critics of the legal mandate, however, question the fairness of a method that doesn't allow judges to tailor a sentence to fit a particular crime or criminal defendant. 'Judicial discretion has always been the heart and soul of the American justice system,' said Monica Pratt, of the Washington D.C.-based organization Families Against Mandatory Minimums. Margaret Plane, staff attorney for the Utah chapter of the American Civil Liberties Union, agreed. 'That's why this case is such a great example,' Plane said. '( Mandatory-minimum ) laws apply without regard to the offense type, without regard to the particular offender. It's really kind of a one-size-fits-all approach, and that's not how our justice system should necessarily work.' Despite his ultimate finding, University of Utah law professor Erik Luna commended Cassell for addressing the matter at all. 'Judge Cassell did a very brave thing in even raising the issue,' said Luna, an outspoken critic of federal sentencing laws. 'We need to take this to the next level, which is to talk to the politicians. . . . I hope and pray some day that sanity will come back to the system.'"
The citizens of California will decide on reform of the state's landmark mandatory sentencing rule, the so-called 'Three Strikes' law, in the Nov. 2004 general election. The measure, Prop 66, is sponsored by Fix Three Strikes/Yes on 66.
According to Prop 66's supporters, "Proposition 66 reforms California's three strikes sentencing law to require that a third strike -- carrying a mandatory minimum 25-to-life sentence -- be a violent or serious felony. It also changes the list of crimes counting as 'strikes' to exclude some nonviolent or nonserious crimes. Resentencing would be an option for some third strikers only."
The New York Times reported on Prop 66 and the effort to reform the California sentencing law on Oct. 24, 2004 ( "California Rethinking '3-Strikes' Sentencing"). According to the Times, "Public outrage over the murder of Polly Klaas, a 12-year-old who had been kidnapped from her bedroom by a man who had repeatedly committed violent crimes, was the driving force behind California's passage 10 years ago of the country's harshest "three strikes" sentencing law. Now the Klaas family is at the center of an election battle over an initiative that would significantly scale back parts of the 1994 law. This time, Polly's father and grandfather are on opposite sides of an impassioned campaign that criminal justice experts say reflects a broad rethinking of the nation's tough-on-crime legislation of a decade ago."
The Times reported that "One of the most significant changes proposed in the ballot measure, known as Proposition 66, would put California more in line with the 24 other states that have three-strikes laws. The change would restrict so-called third-strike offenses for repeated felons, which require a 25-year-to-life sentence, to serious or violent crimes. Currently, even crimes not defined as serious or violent can count as a third strike, leading to instances in which multiple offenders have received the maximum penalty for committing crimes like shoplifting or possessing small amounts of narcotics. Last year, the United States Supreme Court rejected constitutional challenges to sentences of 25 years without parole for a man who stole three golf clubs from a pro shop and 50 years without parole for another man for stealing children's videotapes from a Kmart store."
The Times noted that "While honoring his son's request not to invoke his granddaughter's name, Joe Klaas has emerged as the most listened-to proponent of the ballot measure, in large part because of his family's suffering from Polly's kidnapping and murder in 1993. A campaign official described him as a "stud grandpa" who has been tirelessly flying across the state. 'The three-strikes law needs fixing,' the elder Mr. Klaas said. 'Everybody thought they were voting to put violent criminals away. It has taken 10 years to get the word out and educate the public.'"
California Governor Arnold Schwarzenegger is one of those campaigning against the measure. But according to the Times, "even with the popular governor against it, opinion polls show passage of the measure leading among likely voters of both parties. A Field Poll early this month indicated the measure was comfortably ahead, with the support of 65 percent of likely voters. A recent Los Angeles Times poll put support at 3 to 1."
The Supreme Court announced in August 2004 that it will decide the constitutionality of federal sentencing guidelines. The Wall Street Journal reported on Aug. 3, 2004 ( "Supreme Court To Consider Constitutionality Of Sentencing Guidelines") that "In a rare move on their summer break, the justices agreed to hear arguments in two cases involving the federal guidelines when the new term opens Oct. 4. The Justice Department had asked the court to schedule arguments in the two cases for mid-September. The action highlights the chaos in the criminal-justice system following the Supreme Court's June ruling on state sentencing guidelines. In that 5-4 decision, the high court ruled that any factor increasing a criminal sentence must be admitted by the defendant in a plea deal or proved to a jury. Although the decision, in the case of Blakely v. Washington, technically affected just the guidelines of a single state, federal judges and circuit courts have cited it in dozens of legal opinions. During recent weeks, a number of federal judges and three appellate courts have ruled the federal guidelines unconstitutional."
According to the Journal, "The two cases the court agreed to hear involved Ducan Fanfan, a Massachusetts man convicted of cocaine trafficking, and Freddie J. Booker, a Wisconsin man convicted of selling crack cocaine. Mr. Fanfan was convicted by a jury before the Supreme Court's Blakely ruling, but was sentenced after it. Although he faced a sentence of at least 15 years, the trial judge sentenced him to six years, after rejecting the federal guidelines. In Mr. Booker's case, the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled that the federal guidelines aren't constitutional under Blakely. The court said Mr. Booker's constitutional right to a jury trial was violated when a district-court judge gave him a 30-year prison sentence based on the judge's own findings about the quantity of drugs involved, as well as on a conclusion that Mr. Booker had obstructed justice. The appeals court ordered the trial court to resentence him. The principal question the Supreme Court will take up is whether a defendant's Sixth Amendment right to a jury trial is violated when a sentencing judge imposes an enhanced sentence based on the judge's determination -- by a preponderance of evidence -- of a fact that wasn't found by the jury or admitted by the defendant. The court will also decide whether this renders the entire federal-guidelines system unconstitutional."
The Journal noted that "The briefing and argument schedule set by the court indicates that the justices realize many complex issues are to be considered, some specialists say. Says Douglas Berman, a sentencing expert at Ohio State University's law school, in Columbus: 'Though the Justice Department is saying there's a huge crisis, the Supreme Court is saying it's not going to rush to judgment.' As is generally the case, the Supreme Court didn't comment when it agreed to review the two cases. It also didn't address Washington state's petition for a rehearing of the Blakely case. Stung by that decision, the state had hoped it might have a second opportunity to argue its case."
The US Dept. of Justice is moving to safeguard the extraordinarily long sentences being given some defendants, in light of the Supreme Court's recent decision in the Blakely case. (Note: You may download a PDF copy of the Supreme Court's decision in the Blakely case, number 02-1632, by clicking here.)
The Wall Street Journal reported on July 7, 2004 ( "Sentence Ruling Prompts Memo To Prosecutors") that "The Department of Justice is telling federal prosecutors to bring fresh indictments against certain defendants to guard against any impact from a recent Supreme Court decision involving sentencing rules. Deputy Attorney General James Comey, in a July 2 memo, also instructed prosecutors to "immediately" seek waivers from all defendants who agree to plead guilty to bar them from later using the Supreme Court ruling as a basis to challenge their plea agreement."
According to the Journal, "The high court decision last month said that judges can't act alone to increase prison sentences based on facts that juries never consider or that defendants don't plead to. The ruling applied to state sentencings, and the Justice Department memo repeated the administration's stance that it doesn't apply to federal sentencing guidelines -- while at the same time instituting precautions intended to make sure the ruling won't result in lower sentences in federal cases. The ambiguous position reflects the confusing stance the government took in March when it argued the case, called Blakely v. Washington, before the Supreme Court. In a brief supporting the state of Washington, the government said that while it believed that the case didn't apply to the federal system, it feared its effect could prove "impossibly cumbersome" for juries."
The Journal noted in its news story that "The court said the sentence violated the defendant's Sixth Amendment right to a jury trial when it considered factors that weren't charged in the indictment or decided by a jury. The court left open the question of whether its opinion applied to federal guidelines. Several judges have ruled in the last week that the decision does also apply at the federal level. It is likely that one or more of these recent rulings will be considered by the Supreme Court in the next year. In his memo, Mr. Comey said prosecutors 'should immediately begin to include in indictments all readily provable [sentencing] guidelines' that could boost a defendant's sentence. 'It is prudent for the government to protect against the possibility that such allegations in indictments will be held necessary,' he said. He also said that in pending prosecutions that haven't resulted in plea deals or a trial, prosecutors should obtain new indictments that allege all "readily provable" factors that could be used to boost the defendant's sentence, except for prior convictions."
The Journal reported that "Mr. Comey said in his four-page memo that if courts disagree with the government's legal position, judges should instead impose a sentence within the maximum and minimum terms set by Congress and used before the federal sentencing guidelines took effect in 1987. He said in this instance, the government should argue that judges impose sentences 'consistent with what would have been the guidelines sentence.' That is precisely the model that U.S. District Judge Paul G. Cassell used last week when he became the first federal judge to strike down the federal sentencing guidelines, citing the Supreme Court ruling. Ruling on the sentencing of a Utah man who pleaded guilty to sexually exploiting his adopted daughter, Judge Cassell sentenced the man to 12 years in prison, saying he reached the sentence using the statutory maximum and minimum sentences. The sentence, however, fell squarely within the range prescribed by the federal guidelines."
The American Bar Association has issued a report calling for the end of mandatory minimum sentencing. The Dallas Morning News reported on June 24, 2004 ( "US Report Calls For End Of Mandatory Sentencing") that "Many get-tough approaches to crime don't work and some, such as mandatory minimum sentences for small-time drug offenders, are unfair and should be abolished, a report from the American Bar Association said Wednesday. Laws requiring mandatory minimum prison terms leave little room to consider differences among crimes and criminals, an ABA commission found in its study of problems in the criminal justice system. More people are behind bars for longer terms, but it is unclear whether the country is safer as a result, the ABA said. The report and recommendations for changes in sentencing, prison conditions, and programs for released prisoners follow criticism of the criminal justice system last year from Supreme Court Justice Anthony M. Kennedy."
According to the Morning News, "Justice Kennedy asked the nation's largest lawyers' group to look at what he called unfair and even immoral practices throughout the criminal justice system, and he appeared alongside the group's president Wednesday to accept the first copy of the resulting study. 'The political phrase 'tough on crime' should not lead us into moral blindness,' Justice Kennedy said. Citing his role as a judge, Justice Kennedy did not specifically endorse the report's recommendations, although he has previously denounced mandatory minimum sentences and called for revision of federal sentencing guidelines."
The Morning News noted that "The ABA will vote in August on whether to adopt the recommendations as official positions of the organization. The ABA's policies are not law but are influential. The ABA report also urged governors and the president to pardon more deserving prisoners, and recommended stronger efforts to reduce racial disparities in sentencing and in the prison population."
(Note: You may download a PDF copy of the Supreme Court's decision in the Blakely case, number 02-1632, by clicking here.)
A Supreme Court ruling in a Washington state case has broad implications for mandatory minimum sentencing laws around the country and federally. The New York Times reported on June 27, 2004 ( "Sentencing Decision's Reach Is Far And Wide") that "In March, at the sentencing hearing after his conviction in a financial fraud case, Jamie Olis broke into tears when he heard his fate. Under the federal sentencing guidelines, which penalize defendants who choose to go to trial and can sharply increase sentences based on factors like the financial losses involved, a federal judge in Houston sentenced Mr. Olis, a 38-year-old midlevel executive with an infant daughter, to 24 years in prison. On Thursday, in striking down Washington State's sentencing law, the Supreme Court almost certainly also doomed the federal guidelines that generated Mr. Olis's sentence and hundreds of thousands like it. That means Mr. Olis, who has started serving his sentence while the courts consider his appeals, may be entitled to a much shorter prison term. In light of the decision, said Frank O. Bowman, an author of a treatise on sentencing law, "Olis's sentencing range would probably be zero to six months." Thursday's decision requires any factor that increases a criminal sentence, except for prior convictions, to be proved to a jury beyond a reasonable doubt. Many sentencing schemes allow or require judges to impose longer sentences based on all sorts of criteria, including the defendant's background and the nature and severity of his crime."
According to the Times, "The decision may also affect sentencing laws in at least seven states in addition to Washington and the federal system, said Kevin R. Reitz, an expert on sentencing at the University of Colorado. In all of those jurisdictions, many people sentenced in recent years may be expected to challenge their sentences. And prosecutors, defendants and judges in pending and new cases will face an altered landscape. "It throws the whole country's criminal system into turmoil," said Professor Bowman, who teaches law at Indiana University. In the federal system alone, which handles a small minority of criminal cases, the "vast majority" of 270,000 sentences in the last four years may be affected, Justice Sandra Day O'Connor wrote in her dissent. "The court ignores the havoc it is about to wreak on trial courts across the country," Justice O'Connor wrote. John Kramer, a former executive director of the Pennsylvania Commission on Sentencing, said the decision could affect almost 90,000 state cases in the same period. In North Carolina, about 8,000 cases may be affected in those years, said Ronald F. Wright Jr., a law professor at Wake Forest University and an expert on sentencing law. Jeffrey Fisher, who represents the defendant who challenged the Washington law, said that perhaps 2,600 Washington cases would be affected by the decision in that time frame."
The Times noted that " Luke Esser, a Washington State senator, said the Supreme Court's decision would please defense lawyers in the short run. "The convicted felons that they represent are very happy that they may be having some of their sentences reduced," Mr. Esser said. "I think the general public and most of the state legislators will not share their enthusiasm." It is less clear whether defendants will be better off in the long run. Also unclear is whether the decision will give judges more or less power in deciding sentences. The decision seemed to endorse both traditional sentencing schemes that leave sentences entirely up to judges so long as they do not exceed statutory maximums and schemes that designate fixed sentences for given crimes. Only a middle approach, in which judges are required to make their own factual findings to increase sentences, was held unconstitutional. Sentencing guidelines that allow or require judges to impose more lenient sentences based on mitigating factors are apparently unaffected."
US Supreme Court Chief Justice William Rehnquist has criticized Congress for trying to intimidate federal judges regarding mandatory minimum sentencing rules. The New York Times reported on Jan. 1, 2004 ( "Chief Justice Attacks A Law As Infringing On Judges") that "Chief Justice William H. Rehnquist criticized Congress in unusually pointed terms on Wednesday for a recent law that places federal judges under special scrutiny for sentences that fall short of those called for by the federal sentencing guidelines. The legislation, enacted last spring as a little-noticed amendment to the popular Amber Alert child protection measure, 'could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties,' the chief justice said in his annual year-end report on the federal judiciary. 'It seems that the traditional interchange between the Congress and the judiciary broke down' when the amendment passed without any formal evaluation from the judiciary, he added. At its most recent meeting, in September, the Judicial Conference of the United States, a group of 27 judges who make policy for the federal courts, voted unanimously to ask Congress to repeal the amendment. Congress has not acted on the request from the conference, which the chief justice heads, and the prospect that it will do so appears slight."
Congressional supporters of the measure defended the law. The Times noted that "The chairman of the House Judiciary Committee, Representative F. James Sensenbrenner Jr., Republican of Wisconsin, issued a statement on Wednesday defending the legislation and responding to the chief justice's criticism. Mr. Sensenbrenner said it had been necessary for Congress to act because the 'growing problem of downward departures' -- the term for sentences that fall below the minimum produced by the guidelines -- had been 'undermining sentencing fairness throughout the federal system.' Mr. Sensenbrenner said Congress was aware of the judiciary's opposition when it adopted the amendment. 'This disagreement,' he said, 'resulted from a policy dispute between Congress and the judiciary and did not result from any breakdown in communication between the branches or a lack of opportunity for judges to express their thoughts on this issue.' Nonetheless, it is clear that Congress is not of one mind on the question. Senator Edward M. Kennedy of Massachusetts, a leading Democrat on the Senate Judiciary Committee, called the chief justice's criticism 'extraordinary' and said he agreed that the amendment was undermining judicial independence, by creating 'blacklists based on the sentencing practices of individual federal judges.' Mr. Kennedy said he had introduced a bill to repeal the amendment."
According to the Times, "The measure at issue is known as the Feeney Amendment, for its sponsor, Representative Tom Feeney, Republican of Florida. It instructed the United States Sentencing Commission, the agency that sets the guidelines, to issue new rules to 'ensure that the incidence of downward departures is substantially reduced.' The commission was ordered to maintain judge-by-judge records of sentencing departures and to send the files to the attorney general, who in turn is obliged to provide the information to the Judiciary Committees of both houses."
The Justice Department reportedly wrote the legislation named for Congressman Feeney. The Wall Street Journal reported on Aug. 6, 2003 ( "Ashcroft Intensifies Campaign Against Judges' Soft Sentences") that "Stepping up the Justice Department's battle with federal judges over sentencing guidelines, Attorney General John Ashcroft has directed government lawyers to report on judges who give out softer sentences and to start appealing those sentences in far higher numbers. The move, circulated in an internal memo last week, was anticipated under a measure known as the Feeney amendment, adopted by Congress in April to strengthen judges' adherence to new, stricter sentencing guidelines. Many judges, including U.S. Chief Justice William Rehnquist, view the new rules as a further attack on their independence. 'The Justice Department is telling us that every defendant should be treated in the same way, that there should be no flexibility to deal with individuals,' says U.S. District Judge John S. Martin Jr. of Manhattan. Judge Martin announced his resignation from the bench in June, citing judges' increasingly limited sentencing discretion. Judges' criticism of the Justice Department and the Congress has been at a fever pitch since President Bush signed the Feeney amendment into law. The measure makes it easier for appeals courts to lengthen sentences set by judges that are shorter than those in the federal guidelines. It puts federal judges on notice that they'll be challenged on such sentences and be reported to Congress for giving them. Congress gave the Justice Department, which championed and wrote the legislation, 90 days to come up with a plan to enforce the rules, a deadline that arrived last week. Lawmakers gave the U.S. Sentencing Commission, an independent agency created by Congress in 1987 to create federal sentencing policies and practices, 180 days to formulate its own response. Mr. Ashcroft's order directing U.S. attorneys to appeal far more 'downward departures' by judges -- meaning sentences shorter than the guidelines -- adds fuel to an already bitter dispute between the federal judiciary and the administration."
A report by the federal government's General Accounting
Office raises questions about the justification for the
Feeney Amendment. In its report,
Offenses: Departures from Sentencing Guidelines
and Mandatory Minimum Sentences, Fiscal Years 1999-2001,"
released on October 31, 2003, the GAO found:
A PDF copy of the GAO's report is available by clicking here.
For additional information about the Feeney Amendment, see this editorial from the American Judicature Society, "Three Branches, Not Two: Congress Should Reconsider Recent Assaults." Also, you can access articles from the MAPINC archive on the Feeney Amendment by clicking here.
Webster Alexander, the Alabama teenager sentenced to 26 years in prison for a first-time marijuana offense, has had his sentence cut dramatically. The Tuscaloosa News reported on June 12, 2003 ( "Teen Has Drug Sentence Cut From 26 Years To One Year") that "A Lawrence County teenager who sold about $350 worth of marijuana to an undercover police officer will serve only one year of a 26-year prison sentence. Circuit Judge Philip Reich ruled Wednesday that Webster Alexander, 19, must serve an additional year on probation in addition to 300 hours of community service. The remaining 24 years of the sentence were suspended."
The News reported that "'The reports that I'm seeing from staff people involved in these areas of substance abuse treatment and counseling commend you for what you're doing,' Reich told Alexander in court. Two years ago, as a senior at Lawrence County High School, Alexander sold small amounts of marijuana on several occasions to an undercover agent recruited by Principal Ricky Nichols. The transactions took place at school and at Alexander's trailer, where he lived with his family. Alexander pleaded guilty in January and received the 26-year sentence. It was his first arrest. State laws increase the penalties for selling drugs within three miles of a school."
The News notes that "Since his arrest, Alexander graduated high school, spent time in drug rehabilitation and completed a year of college while released on probation." Now, "Alexander will spend a month in jail before he's allowed into a work release program, and he already has a job offer as a roofer, according to his attorney, John Edmond Mays."
Oklahoma is one of many states considering criminal justice reforms to save revenue as budget woes continue to grow around the country. The Shawnee News-Star reported on March 13, 2003 ( "Lawmakers Looking To Cut Prison Population, Costs"), that "From resurrecting the prison cap law to making marijuana possession punishable by the equivalent of a traffic ticket, Oklahoma lawmakers are looking for ways to cut the state's prison population and its skyrocketing costs. Faced with a $677 million budget shortfall next year, the 2003 Legislature is considering sentencing reforms and other proposals to reduce the state's incarceration rate, one of the nation's highest, without jeopardizing public safety."
The Oklahoma legislature is considering a number of recommendations. As the News-Star noted, "Last week, the Sentencing Commission handed down a list of proposed sentencing reforms, including elimination of mandatory minimum sentences for certain drug offenses and allowing more offenders to receive suspended sentences and participate in community sentencing programs. The commission said the number of felony offenders projected for state prisons in the next few years will outstrip the number of prison beds the Department of Corrections can afford. 'The idea is to expand the base of convicts who are sentenced to community sentencing to alternatives to incarceration,' Drummond said. Recommendations include making possession of one ounce or less of marijuana a misdemeanor subject to a citation not unlike a traffic ticket. Offenders could still receive some jail time and be ordered to participate in mandatory treatment programs. Statistics compiled by the Oklahoma Criminal Justice Resource Center found that drug and alcohol offenses are the leading causes of prison sentences in the state, accounting for 44 percent of all receptions in 2001. The center found that marijuana possession accounted for 12 percent of all felony drug possessors convicted in 2001. Drummond said Oklahoma has more minor, nonviolent drug offenders in prison per capita than any state in the region."
Oklahoma is not alone. The Columbis Dispatch reported on March 9, 2003 ( "States Free Inmates To Save Money") that "After years of tough-on-crime measures that boosted America's prison population to 2 million, politicians in many states are reversing course. Desperate to avert projected deficits, legislatures nationwide have curtailed corrections spending -- or are at least considering it -- by releasing inmates early, closing prisons, diverting drug offenders to treatment programs and moderating tough sentencing laws. The appetite for building ever more prisons has faded. 'Our efforts to provide for the public safety must encompass more than simply locking more people up for longer periods,' said Arkansas Gov. Mike Huckabee. 'If that's the extent of our strategy, we'll go broke.'"
Reformers see the opportunity for states to make a great deal of progress. According to the Dispatch, "'Legislators don't like to admit they made a mistake, but politically they've got more cover now,' said Mark Mauer, assistant director of a Washington-based group advocating alternatives to imprisonment. 'It comes down to saving money on prisons or increasing class size at their kids' schools.'" The Dispatch further reported that "'In 23 years in the field, this is the most receptive atmosphere I've seen,' said Vincent Schiraldi of the Washington-based Justice Policy Institute, an ally of the Sentencing Project. 'We're trying to seize on this moment,' said Kara Gotsch, policy coordinator of the American Civil Liberties Union's Prison Project. 'We've been talking about these ideas for so many years, and now -- because of the financial crisis -- legislators on both sides of the aisle are enacting these exact policies.'"
There is some concern however that budget restraints may keep states from providing the assistance needed to re-integrate offenders back into society and to help them keep on the straight and narrow. The Dispatch notes that "Reform groups, amid their excitement, worry that some states will accelerate inmate releases without bolstering support programs to reduce recidivism. 'I'm afraid they'll just dump these people out on the streets without support,' said Herbert Hoelter, director of the National Center on Institutions and Alternatives."
A teenager in Alabama has been sentenced to 26 years in prison for selling drugs to a police officer working undercover in the teen's high school. The Decatur, AL Daily reported on Jan. 15, 2003 ( "Teen Gets 26 Years For School Drug Sale") that "Webster Alexander, 19, of 2161 Lawrence County 180, Moulton, received the jail time for six drug charges, including four for distributing controlled substances at the school. Lawrence County District Attorney Jim Osborn said the sentences were stiff, but justified. 'Distribution of a controlled substance is a serious offense any time, but it is especially serious when it's on school property,' he said. The other two charges were for first-degree possession of marijuana and possession of paraphernalia. Lawrence County Circuit Judge Philip Reich sentenced Alexander to 13 years on each distribution charge. He gave him three years for the act of selling on campus, five years for selling drugs within three miles of a school and five years for selling within three miles of a housing project. Reich ordered Alexander to serve two of the distribution sentences consecutively. He will serve the other two at the same time he serves the first two. Reich also sentenced Alexander to five years on the marijuana charge and six months on the paraphernalia charge."
According to the Daily, "Authorities arrested Alexander at his home April 9, 2002, after an undercover agent with the Lawrence County Drug Task Force identified him as one of the students selling drugs at school. The agent posed as a student for six weeks and made several drug buys." The Daily notes that Alexander has applied for probation, and will be free on bond pending a probation hearing.
Before leaving office, Michigan Gov. John Engler (R) signed legislation to end mandatory minimum sentences for drug offenses. According to an AP report in the Holland, MI Sentinel on Dec. 28, 2002 ( "Engler Eliminates Mandatory Minimums"), "The legislation requires judges to follow state sentencing guidelines when sending drug criminals to prison but gives them more discretion by eliminating minimum sentences. Under the old law, for example, someone possessing 50 to 224 grams of narcotics or cocaine in Michigan had to be sentenced to at least 10 years and up to 20 years in prison. The new law eliminates the 10-year minimum, allowing the judge to sentence an offender for any time up to 20 years. The law will go into effect March 1. The state Department of Corrections doesn't know how many of Michigan's 49,296 inmates would be eligible for parole, but supporters of the legislation said it will help alleviate the state's skyrocketing prison population. Engler signed the bill on Christmas Day, spokesman Matt Resch said."
Advocates point to Michigan as a significant triumph, and note that several other states are also considering an end to mandatory minimum sentences. The Sentinel reported that "Michigan has had among the harshest mandatory minimum sentencing guidelines in the nation, said Laura Sager, executive director of Families Against Mandatory Minimums. Connecticut, Indiana, Iowa, Kansas, Louisiana, Missouri, North Carolina and New Jersey also are considering eliminating their mandatory minimums, Sager said."
Common Sense for Drug Policy has joined with The November Coalition to organize the 2002 Journey for Justice. Stops are planned in major cities across the US, in addition to rallies of support at prisons around the country. Click here for more information about the Journey. You can also get schedule information by clicking here.
The 2002 Journey kicked off in Detroit, MI, on Oct. 11. As reported by the Detroit Metro Times ( "Saying No To The War On Drugs), "The combined effort of two national organizations, the November Coalition and Common Sense for Drug Policy, the Journey for Justice will tour the nation for four years, highlighting the injustices of current drug policy and calling for reform. The kickoff of the tour took place last weekend with a Friday lecture in Ann Arbor and a Saturday forum in Detroit. Organizers say the drug war is a fallacy that has caused countless injustices, wasted tax dollars, invoked sexist and racist policies and resulted in thousands of draconian sentences for victimless crimes. The Journey for Justice is calling for a complete re-examination of the nation's current war against drugs, and is attempting to organize a grassroots constituency through public education and discussion. Proponents are not interested in highlighting one particular drug or cause; instead, they want to draw attention to the drug war as a whole - - especially the issues of incarceration vs. treatment and creating alternatives to current policy."
The Detroit event focused on the waste of the drug war, and the huge prison industrial complex that the drug war has created. The Metro Times reported that TNC Director Nora Callahan "feels drug users are unfairly targeted and sentenced by race and gender. She says police use racial profiling when searching for drugs, causing an inordinate number of minorities to be imprisoned. Callahan says women are likely to face longer sentences than men, because the system is 'informant based,' which she is against. In addition, she says women often hold lesser roles in the drug trade, and know little about bigger players in a network. 'When it comes time to barter for freedom by testifying against others, they don't have any info,' she says. 'That's the only way to get a sentence reduction. Tell on three, go free.' Another major problem: Drug offenders are sent en masse to prison, where drugs are widely accessible. 'The place you can easiest find drugs in America is in the prison system,' said U.S. Rep. John Conyers, D-Detroit, during day two of the conference in Detroit."
One of the big problems activists face is that the prison industrial complex is enormously profitable. "It's no secret that the drug war is big business, on both sides of the equation. Callahan feels the enormous sums invested into the war on drugs are simply going up in smoke. 'Tax dollars are paying for a system that causes more harm than any illegal drugs ever did,' said Callahan. Callahan would eventually like to see illegal drugs regulated in the same manner as prescription drugs, which she feels would make the illicit drug trade unprofitable."
Support in Michigan for reforming mandatory minimum sentencing laws and ending the drug war is strong and building among the public, though some policymakers have been slow to catch up. "Historically, the state of Michigan has not placed an overwhelming priority on drug policy reform. Debra Wright, co-chair of the Drug Policy Forum of Michigan, said too few lawmakers are interested. 'There's more support [for drug law reform] amongst the people than the legislators. They're behind the eight ball,' she said. 'There's a lot of people in the city of Detroit that see and feel the damage caused by the war on drugs, so there is a lot of support behind it.' U.S. Rep. Carolyn Cheeks Kilpatrick, D-Detroit, spoke in favor of ending the drug war at the Detroit panel. Detroit Chief of Police Jerry Oliver was unable to attend, but criticized the drug war in a recent op-ed piece in the Detroit News."
CSDP President Kevin B. Zeese wrote about the Journey and the Michigan events in a piece for DrugWar.com on Oct. 15, 2002, titled "First Stop On The Journey For Justice". According to Zeese, "The Michigan stop included seven events, along with a number of media opportunities. As Congressman John Conyers, the ranking member of the Judiciary Committee in the US House of Representatives (and who will be Chairman of Judiciary if the Democrats retake the House) said at the main event in Detroit -- 'If the victims of the drug war stand united they will form a political constituency that could end the drug war.' That is the essence of the goal of the Journey for Justice -- to activate a constituency of people directly affected by the drug war so that they can become an effective army against the drug war."
The sentence in an Alabama drug distribution case is helping spark concern nationally and in that state over mandatory minimum sentences and prison overcrowding. The Newark Star-Ledger reported on May 2, 2002 ( "Drug 'Lifer' Gets Second Chance And Goes Free") that "A woman who was sentenced to life without parole for a first-time drug offense was released yesterday after spending five years in prison. About two hours after a judge reduced her sentence to time served, Theresa Wilson, 34, walked out of the Jefferson County Jail, arm in arm with her husband." According to the Star-Ledger, "Wilson became a poster child for critics of mandatory sentencing in 1998, when she was ordered to spend the rest of her life in prison because of a law that branded her a 'drug baron' when she sold a morphine mixture for $150. The 1986 law mandated the sentence because the mixture weighed more than 56 grams."
The LA Times reported that the case, and others like it, are making legislatures around the country re-think the use of mandatory minimum sentences. According to the Times on May 2, 2002 ( "Mandatory Sentencing Backlash Builds"), "Intended to target drug kingpins, many mandatory minimum laws, as they're known, more often have sent addicts, drug dealers' girlfriends and college kids peddling marijuana to prison for long terms. Now the U.S. Supreme Court has agreed to hear two cases, probably in the fall, challenging California's three-strikes law, the toughest of its kind in the nation."
The Times continues:
"Sens. Jeff Sessions (R-Ala.), a former federal
prosecutor, and Orrin G. Hatch (R-Utah) are pushing a
bill that would ease mandatory sentences for those who played
a minimal role in a drug transaction. (Neither lawmaker
is known for being easy on criminals.)
The backlash is also growing within the state of Alabama itself. As the Anniston Star wrote in an editorial May 7, 2002 ( "Overcrowding"), "The Alabama criminal justice system has continued to pump offenders into state prisons as if the jail cells could just expand to meet the demand. The prison population now sits at a staggering 190 percent of capacity. Alabama Corrections Commissioner Mike Haley says the source of the overcrowding are inconsistent and harsh sentencing guidelines. But while so-called 'law and order' legislators have continued to hand down those guidelines and mandatory minimums, they have made no accommodations for the resulting boom in prisoners. The overflow prisoners end up sitting in county jails, packed tighter than dogs at a kennel. The state then pays the counties $1.75 a day for housing the inmates - nowhere near the actual cost of $26 a day."
The Star reported on May 8, 2002 ( "13 State Inmates Removed From Calhoun County Jail") that "The state could parole 11,000 of its current 26,000-inmate population and still remain at full prison capacity, acknowledged John Hamm, a corrections department spokesman. Taxpayers in Calhoun County pay almost all the $24 per day associated with jailing a state prisoner here. That could change based on the outcome of a lawsuit counties have filed against the state. In that lawsuit, a retired judge has recommended the state pay counties $26 per day for each state prisoner and $2.16 million backpay for prisoners held beyond 30 days between Sept. 3, 2001, and April 16, 2002. 'If we got paid ( the cost of housing the state inmates ) we could hire more staff,' (Sheriff Larry) Amerson said, referring to an inmate-to-jailer ratio that sometimes reaches 90:1. 'We could obtain the resources and buy the supplies we need to take care of them ( the inmates ).' Right now, the sheriff doesn't have enough money in his stretched budget to fix faulty electric locks that automatically seal connecting passageways. Jailers padlock doors overnight, which Amerson said could prove disastrous should a fire sweep through the facility's attic. According to Amerson, there are a number of county jails across the state with additional space that would jump at the chance to hold state inmates if they were compensated for it."
As the Star noted in its May 7 editorial, "Who pays the difference? You do, in the form of high sales and gas taxes, as Calhoun County cannot levy any other kind of tax. The reason for this, as we all know, is our pitiful state constitution of 1901. It not only ensures that the state doesn't have enough money to build prisons, it also ensures that the state can't pay the counties when they take on the responsibility. The overcrowding has its hidden costs as well. It makes recidivism more likely because inmates don't receive the treatment and training they need to function in society. The sheriff's office must devote 60 percent of its budget to the county jail - money that could be used for more patrols and more officers to prevent crimes from happening in the first place. The overcrowding leads to an inmate-to-jailer ratio of 90:1, which, according to Calhoun County Sheriff Larry Amerson, creates a dangerous situation for the deputies and is ripe for a riot or outbreak. As with many of Alabama's problems, change can only come with constitutional and tax reform. The state ranks dead last in per-inmate spending. In the words of Calhoun County Administrator Ken Joiner: 'I can't fathom why we can't wake up and realize the services are needed, and until we change some things constitution-wise and legislative-wise, we're never going to get out of this hole.'"
Protesters took their message to the streets on May 8, 2002, to mark the beginning of the 30th and hopefully last year of the Rockefeller Drug Laws. As columnist Sheryl McCarthy wrote in New York Newsday on May 9, 2002 ( "It's Time For Tough Questions About Drug Law"), "They were out on Manhattan's Third Avenue yesterday: the retired judge, the pardoned former prison inmate, the prison reformers, the drug-policy people, the treatment-program people, the recovering addicts, a handful of lawyers and, as always, the relatives of those in prison. People like Evelyn Sanchez, 62, whose son has spent a decade in Attica and is still counting, and Minerva Dones, 76, whose grandson has spent seven years in the Greenhaven State prison facility in upstate New York. It was the first day of the 30th year since the enactment of the so-called Rockefeller drug laws, and the people taking part in this rally were doing what they've done for years: demanding the repeal of laws that have filled more state prisons than any other laws that have ever been passed."
The harsh sentences required under the Rockefeller Laws have generated a great deal of opposition ever since their inception. As columnist Ellis Henican wrote in Newsday on May 8, 2002 ( "Sadly, Drug Laws Stay"), then-Governor Nelson "Rockefeller had been opposed on this not just by the usual civil libertarians and liberal groups. Many conservatives warned his rigid plan would only make things worse."
Henican continues: "He'd fought 'against
this strange alliance of established interests, political
opportunists and misguided soft-liners who joined forces and
tried unsuccessfully to stop this program,' he complained
at the signing ceremony.
The Rockefeller laws have become more and more unpopular over the years, but efforts to repeal them continue to run into stumbling blocks. As the New York Times reported on May 9, 2002 ( "Pataki Proposes Changes To Rockefeller Drug Laws"), "As protesters in New York and Albany spoke out against the state' harsh penalties for drug crimes today, Gov. George E. Pataki put forward yet another proposal for breaking a deadlock with Assembly Democrats over reducing sentences for drug offenders. It is the governor's third attempt in the last year and a half to reach an agreement with the Assembly on the issue. The penalties for drug crimes, enacted in the 1970's, rankle many black and Latino voters, groups the governor has been trying to please as part of his re-election campaign. Nine of 10 people serving time for drug offenses are black or Hispanic."
Unfortunately, as Ms. McCarthy wrote in her Newsday piece, "The drug-law reform that Pataki has on the table is lousy. It gives judges the power to reduce a small portion of the longest sentences. But it actually increases the penalties for marijuana-related crimes and provides not a single dollar for drug treatment. A proposal before the Assembly would give judges sentencing discretion in more cases and includes a treatment piece. But, frankly, none of the proposals is that great. Real drug-law reform would require making the sale and use of marijuana legal, thereby eliminating the arrests of hundreds of people every day and giving them criminal records. It would, quite frankly, legalize and regulate the sale of all narcotics. It would provide drug treatment for anybody who wanted it, without making it mandatory for non-violent addict who don't want it."
Indeed, even the New York Times noted in its piece that
"But the Assembly Democrats say there is less than meets
the eye to Mr. Pataki's proposal. For starters, only people
with one prior felony conviction or no criminal record at all
would be able to appeal to a judge for the chance to receive
treatment, and most addicted felons have more than one conviction.
In 2000, about 1,600 people imprisoned on drug convictions were
first-time offenders who could have been treated under the
governor's proposal, but 1,752 others would not have
qualified." The Times continues:
Prior to Wednesday's demonstration, victims of the Rockefeller Laws appeared on the Pacifica radio networks's Democracy Now. The segment also included a look at the racist travesty of justice perpetrated against the people of Tulia, TX (for more info on the Tulia situation click here). A streaming audio feed of the broadcast as well as a brief summary and guest list is available by clicking here.
For more information about the effort to 'Drop The Rock' and on New York's Mothers of the Disappeared, check the website for DropTheRock.org as well as the William Moses Kunstler Fund for Racial Justice.
People don't have to die to lose their lives. Toni Bunton of Detroit, MI, drove a car for a couple of friends so that they could try to sell a few pounds of marijuana, at least so she thought. The Detroit News reports that Ms. Bunton, a first-time offender who was at the time 17 years old, was sentenced to 25-50 years in prison.
Several states, as well as the federal government, have adopted a mix of mandatory minimum sentences, "truth-in-sentencing" laws, and "three strikes" legislation. At the federal level, there are also sentencing guidelines that in a sense duplicate the purpose of the mandatory minimum sentencing laws. Though well-intentioned, these laws have in fact led to exceptionally long sentences for minor, nonviolent drug offenders. Several organizations are working for an end to this practice, including The November Coalition, Families Against Mandatory Minimums (FAMM), and the Criminal Justice Policy Foundation. During the Jubilee Year 2000, these groups along with many members of the clergy from several different faiths came together as the Coalition for Jubilee Justice to urge clemency for thousands of nonviolent drug offenders serving time behind bars.
A number of organizations also work to support these prisoners and their families and to remind the public that they are still alive. FamilyWatch is one such organization, in addition to FAMM and The November Coalition. Also, Common Sense and The November Coalition have joined together to sponsor the Journey for Justice tour of the US.