Technically, There Are More Than Two Ways...

From Ron Chapman’s new blog/website, “Federal Criminal Lawyer – Frequently Asked Questions”, comes this post titled in the form of a question, “How Can You Avoid a Minimum Mandatory Sentence in Federal Court?”:

In federal court, there are only two ways to avoid such a sentence:

1. Safety valve; and
2. Cooperation.

He then discusses how § 3553 (f) and (e) respectively allow for sentences under a mandatory minimum.

In fairness, I’m (a) being a smart ass, and (b) his post probably assumes without saying that we are in 3553-land to begin with.

The Boston Celtics, Len Bias, and the War on Drugs

So the Celtics celebrated another championship the other night, their first since 1986. I wasn’t nearly as bitter this time around.

True, they didn’t beat the Twin Towers this time – Akeem Olajuwon and Ralph Sampson – my high school heroes, but the real reason for my lack of interest is that I haven’t paid attention at all to the NBA in years.

However, Pete at Drug WarRant reminds us all of what happened after that last Celtic championship. They drafted Len Bias, who overdosed two days later. Tip O’Neil, D-Boston, was Speaker of the House. I won’t rehash Pete’s excellent original analysis of the situation, but suffice it say that yes, this incident was in large part responsible for such tragedies as mandatory minimum sentences in cocaine cases, the 100-1 crack to cocaine ratio, and basically the unreasonably long sentences still meted out in federal drug cases.

Democrats wanted to show their constituents just how ‘tough on crime’ they could be, so political expediency trumped thoughtful analysis, and over two decades later the U.S. leads the world by far in incarceration.

And just think. If my 1986 Rockets had beaten Bird, Parrish and McHale? Boston would have had a different place in the draft, and probably wouldn’t have selected Len Bias. Amazing what random chance can do to an entire criminal justice system.

Why Law Enforcement Supports Mandatory Minimums

Annonymous commenter on Doug Berman’s post “The safety valve solution to mandatory minimums”:

Isn’t part, and an important part, of the real story behind the motivation of law enforcement figures who so obdurately support mandatory minimums is that it increases their ability to coerce plea bargains?

Seemingly absent from the discussion is the fact that law enforcement supports and indeed requests massively below guideline sentences for its pleader-cooperators. The response that this is a statutory-based departure based on cooperation doesn’t seem particularly compelling given that in so many plea bargains a large down-departure is built into the deal by the prosecutors dropping many charges before settling on the claim(s) to be plead.

This disparity that law enforcement can count on, between the mandatory sentences and what pleaders can expect, gives their already monstrous-plea bargaining power some serious additional oomph.

Bingo.

And to be fair, not all law enforcement supports mandatory minimums.

The War on Drugs is the new New Deal

Excellent article by Christopher Shea who writes the ‘Critical Faculties’ column in this weekend’s Boston Globe, “Life Sentence”:

What if America launched a new New Deal and no one noticed? And what if, instead of lifting the unemployed out of poverty, this multibillion-dollar project steadily drove poor communities further and further out of the American mainstream?

That's how America should think about its growing prison system, some leading social scientists are saying, in research that suggests prisons have a far deeper impact on the nation than simply punishing criminals.

Fueled by the war on drugs, "three-strike" laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.

The article makes many good points.

One is the problem that most of the general public is completely unaware that America is the Land of Incarceration (5% of the world’s population, almost 25% of the world’s prisoners). Most folks that aren’t in the ‘criminal justice’ industry are shocked by those numbers.

Shea argues that the pendulum is perhaps swinging in the other direction. He points to Glenn Loury and Bruce Western’s upcoming testimony at next week’s congressional hearings. The Joint Economic Committee will focus at least in part on the economic costs of our current ‘lock the door, and throw away the key’ approach to punishing drug crimes.

Shea believes that prison reform will take off as books are being released and sociologists focus on the problem.

Speaking of pendulums, also see One-Way Street’s analysis of the article:

The incipient prison reform movement may have less to do with genuine concern for the unfortunate than a consequence of a long economic expansion finally running out of gas. Citing Foucault's Discipline and Punish is irresistible in this context, and Foucault points out that prison reform is most likely to occur in affluent times, when criminality tends to turn toward crimes against property, causing in turn a broad harshening of penalties.

Rather than just simply throwing every crack head burglar in jail for the rest of his life, as we're essentially doing now, reformers wanted not to soften the law but to lessen (or sometimes merely to hide) the arbitrariness of justice.

Foucault himself was a member of the Groupe d'information sur les Prisons (GIP), a prison reform group, but that didn't prevent him from being suspicious of prison reform movements in general, which he regarded as agents in the redistribution of power.

On a personal note, I believe that in the centuries to come, societies will see the War on Drugs as a great moral failing on the part of the United States; that is, incarcerating drug addicts for substantial periods for doing what we know they do will be unthinkable. Don’t forget, at one point most folks didn’t question the morality of slavery.

But I have also argued in the past that drug war reformers will initially prevail, and in baby steps at that, by making cogent economic arguments. Give me fifteen minutes to have a serious back and forth conversation with anyone, anyone who is pro-Drug War, and I’ll have them at least halfway converted when they hear how much 25 to Life costs them, for non-violent drug users. The most hard headed will at least concede that the really high sentences shouldn’t be handed out for any marijuana offense, or for anyone that ‘only uses’ drugs. I think many of them think I am stretching the truth when I tell them the horror stories.

[Hat Tip: Oregon marijuana lawyer Lee Berger. Thanks for sending this article out on the NORML Legal Committee ListServ. Also see Pat Rogers.]

Gerald Ford and the "War on Drugs"

Former president Gerald Ford’s passing is regrettable, of course, and I’m sure the media will bombard us with all sorts of tributes to the man, many of which may be deserved. I write here, however, of his pivotal role in the unfortunate escalation of the so called “War on Drugs”, and its aftermath.

From his April 27th, 1976, Special Message to Congress address:

When this problem exploded into the national consciousness in the late 1960's, the response of the Federal Government was swift and vigorous. Federal spending on a comprehensive program to control drug abuse grew from less than $100 million in 1969 to over three-quarters of a billion in 1974; specialized agencies like the Drug Enforcement Administration and the National Institute on Drug Abuse were created; and international diplomatic efforts to mobilize the assistance of foreign governments in a world-wide attack on drug trafficking were intensified.

With the help of State and local governments, community groups and our international allies in the battle against narcotics, we were able to make impressive progress in combatting the drug menace. So much so that by mid-1973 many were convinced that we had "turned the corner" on the drug abuse problem.

Unfortunately, while we had won an important victory, we had not won the war on drugs. By 1975, it was clear that drug use was increasing, that the gains of prior years were being lost, that in human terms, narcotics had become a national tragedy. Today, drug abuse constitutes a clear and present threat to the health and future of our Nation.

The time has come to launch a new and more aggressive campaign to reverse the trend of increasing drug abuse in America. And this time we must be prepared to stick with the task for as long as necessary.

Ford goes on to ask Congress to pass legislation mandating prison instead of probation, to enact mandatory minimums, even to deny bail to persons accused of certain drug crimes. (Yes, bail is for the accused, not the convicted, and theoretically the right to reasonable bail is protected by the eighth amendment.)

Perhaps in 1976, it was too early to know that an expensive, arbitrary, and severely punitive solution would utterly fail when it came to attacking the problem of drug abuse. Thirty years later, however, there is no excuse. We have been hearing the same thing for over 3 decades, and we do now know that incarceration and mandatory minimums are both ineffective and immoral.

The time has come for a different “solution”.

Supreme Court Turns Down Mandatory Minimum Case

The U.S. Supreme Court denied cert in Angelos v. U.S. today, effectively affirming this defendant’s 55 year sentence for being set up by the government to sell marijuana, and, according to the snitch who was deal-making for his own liberty, carried a gun in an ankle holster.

Three controlled buys of 8 ounces of marijuana, and some not-so-reliable testimony about whether you carried a weapon (but did not use or exhibit it) equals fifty five years in prison on this particular occasion.

Originally offered sixteen years in the federal penitentiary if he plead guilty to the offense, Angelos turned the deal down because he insisted that he had not carried the weapon. (That’s why the snitch testimony is an important factor here – there’s good reason to disbelieve any paid testimony of a Government witness.)

By exercising his constitutional right to dispute this aggravating factor, Angelos rolled the dice and lost in a big way. I’m sure this was in part because the original 16 year prison offer was ridiculously high, even if he were guilty exactly as accused.

A defendant indicted on a state charge in Austin, Texas under the same set of facts, would likely be facing a State Jail Felony charge, where his maximum punishment would be five years (day-for-day, no parole) in a state jail facility. I’m guessing, obviously, but the offer would probably be for probation. (There is some chance a Travis County prosecutor might try to enhance it to a Third Degree Felony, based on the weapon, which would double the maximum to ten years, but then leave open a possibility of paroling from TDCJ. Again, I think probation would be a likely outcome.)

And the stark contrast with the punishment range under Texas rather than Federal law is even more surprising, given that Texas has notoriously high punishment ranges for marijuana and controlled substance offenses. In most states, a defendant in Angelos’ situation would be facing substantially less time than here in Texas.

For readers that have gotten this far, but are still reacting to this story with a “do the crime – do the time – and to heck with him” mentality?... Please read this Progressive article humanizing Weldon Angelos, then get back to me.

You have to know something is very wrong, when the sentencing judge decries the penalty he must give a defendant, and goes so far as to list much lower maximum sentences available in other types of federal cases:

Hijacking an airplane: 25 years

Second-degree murder: 14 years

Kidnapping: 13 years

Rape of a 10-year-old: 11 years

Remember, we are talking about 24 ounces of marijuana here…