Bob Herbert again takes on New York's Rockefeller drug laws in today's New York Timees. The Ruinous Drug Laws

"How about a dose of sanity? After 29 futile and tragic years, it is time to bring the curtain down on the institutionalized cruelty of the Rockefeller drug laws. There is no way to justify sentencing nonviolent low-level drug offenders to prison terms that are longer than those served by some killers and rapists."

He's right of course. Can't anyone make the New York Legislature listen?

Florida Governor and Presidential brother Jeb Bush's 24 year old daughter got 3 days in jail for noncompliance with a drug treatment plan. With no way to spin it, he sent an email to the media to tell them. Among his comments, "Unfortunately, this happens to many individuals even as they continue their journey to full recovery."

Why is it that politicians only recognize truths such as relapse is common during drug treatment when it happens to someone in their families or small circle of friends? Otherwise, they seem quite content to brand drug offenders as criminals and jail them when they fail to live up to the terms of their probation or or drug treatment plan.

Hopefully, this will open some eyes and lead to more rational and humane treatment of drug users.

The Washington Post reports on "Operation Tips" today. Our first post on this may have gotten buried in all our Walker Lindh coverage, so here's a bump for Bush's "Operation Tips" and the threat it poses to the Constitution. It will turn a million Americans into volunteer snitches--and more.

"And check out the great Boston Globe editiorial today:

"Ashcroft's informant corps is a vile idea not merely because it violates civil liberties in a narrow legal sense or because it will sabotage genuine efforts to prevent terrorism by overloading law enforcement officials with irrelevant reports about Americans who have nothing to do with terrorists. Operation TIPS should be stopped because it is utterly anti-American. It would give Stalin and the KGB a delayed triumph in the Cold War - in the name of the Bush administration's war against terrorism."

The National Coalition to Abolish the Death Penalty yesterday released a report entitled "Drug Companies and Their Role in Aiding Executions" and called upon the nation's manufacturers and distributors of lethal injection drugs to take steps to prevent their drugs from being used in executions conducted via lethal injection.

The report has two immediate goals: to convince pharmaceutical companies to speak out against the use of their drugs in executions and to take steps to prevent their products from falling into the hands of prison officials who oversee executions.

The report traces the history and present use of lethal injection drugs in executions, reports on what can go wrong during the lethal injection process and lists the companies that produce lethal injection drugs, their corporate officers and their contact information.

Already, one leading manufacturer, Abbott Laboratories, Inc., which manufactures sodium thiopental, has issued a statement requesting "that this product not be used in capital punishment procedures."

The seven publicly-held companies targeted by NCADP include Abbott Laboratories, Inc., based in Abbott Park, Ill.; American Pharmaceutical Partners, Inc., based in Los Angeles; AmerisourceBergen, based in Chesterbrook, Pa.; Baxter International Inc, based in Deerfield, Ill.; Cardinal Health, based in Dublin, Ohio; Wyeth Pharmaceuticals, based in St. Davids, Penn; and Gensia Sicor Pharmaceuticals, Inc., based in Irvine, Ca.

Chill Wind Over Witnesses is a good editorial in the Los Angeles Times on the inappropriate treatment of Mitchell Crooks, the tourist-videographer of the teen beaten by the LA Cops last week.

Quote: " From the way Steve Cooley's G-men treated him, you might think that Mitchell Crooks was a drug kingpin or Mafia don rather than an unemployed party disc jockey with some lapses in his past. The district attorney's decision last week to deploy a squad of agents--which cuffed him with TV news cameras rolling and carted him away on years-old warrants--looks too much like intimidation of future witnesses in police brutality cases."

The Government wants to be extra-sure it gets the death penalty for Moussaoui. They went and got a Third Superseding Indictment, Here it is.

The new Indictment alleges that Moussaoui acted in "an especially heinous, cruel and depraved manner," with premeditation, to cause death and commit terrorism. Now they can say that the grand jury passed on the facts to support the charge, a matter seized upon by Moussaoui's court-appointed lawyers, the ones he doesn't want, in a motion to dismiss the death penalty charge. The Government wants to avoid any problems that may have been engendered by the Supreme Court's ruling in Ring v. Arizona, although that only directly applied to trial juries. For More.

One of the requirements of the Patriot Act is that the Department of Justice file reports on abuses of the act.

Here is the report --in pdf (adobe acrobat)

Received from the American Immigration Lawyers' Association

As many of you know, the chairman of the House Judiciary committee, Rep. James Sensenbrenner and Rep. Barney Frank have reached an agreement on the language of HR 1452, the Family Unification Act of 2002. This bipartisan bill is scheduled to be marked up by the full Judiciary Committee tomorrow (Wed., July 17) at 10:00.

WE NEED YOUR HELP ON THIS IMPORTANT BILL

In order to pass this out of committee, we are asking that each of you contact some of the Republican members of the Judiciary and urge them to support this compromise bill. The proposal is supported by Representatives James Sensenbrenner, former chair Henry Hyde (R-IL), and Chris Cannon (R-UT). Four other Republicans are co-sponsors of the bill - Lincoln Diaz-Balart (FL); Ileana Ros-Lehtinen (FL); Doug Ose (CA); and Chris Shays (CT)

Although this bill is far less than what we have been asking for, it's passage would be an IMPORTANT victory in our effort to restore some measure of fairness for long-term legal permanent residents. The modest reforms in this bill would simply allow legal permanent residents who have lived legally in the United States for at least five years, and who are facing deportation for an offense that resulted in a sentence of less than four years (or less than 2 years if the offense is classified as a "crime of violence"), to present the facts of their case to an immigration judge to determine whether or not they should be deported from their adopted country. The bill would send an important signal that our laws can be tough AND fair.

Please feel free to contact me if you have any questions. A list of Republicans on the Judiciary are as follows:

- Steve Chabot (R-OH): 202-225-2216
- Bob Barr (R-GA): 202-225-2931
- Mark Green (R-WI): 202-225-5665
- Melissa Hart (R-PA): 202-225-2565
- Darrel Issa (R-CA): 202-225-3906
- Jeff Flake (R-AZ): 202-225-2635
- Randy Forbes (R-VA): 202-225-6365

Thank you,

Ben Johnson
Associate Director of Advocacy
American Immigration Lawyers Assoc.
(202) 216-2437

As we said yesterday, the key to understanding how much time Lindh will serve under his plea agreement is in the U.S. Sentencing Guidelines, which are set by the U.S. Sentencing Commission. The applicable U.S.Sentencing Guidelines are here.

For those unfamiliar with guidelines, which is probably 99 percent of the world, here is an excellent free primer by the Federal Public and Community Defenders.

The major points as we see them:

First, which version of the guidelines apply since guideline amendments take effect every November 1? The version in effect at the time of the sentencing unless the guidelines in effect at the time of the crime were more favorable (USSG 1B1.11)

Sentencing in Lindh is set for October 2002. Lindh's crimes occurred from May 2001 through the end of November 2001. The November 2001 edition will be used. The 2002 amendments, including those related to Patriot Act offenses, do not take effect until November 2002.

Second: Where there is no guideline designated for a specific offense, the guideline for the most analogous offense is used. On the supplying services to the Taliban count, the parties agreed that USSG 2M5.2 (Exportation of Arms, Munitions or Military Equipment or Services Without Required Validated Export License) is the most analogous offense. Should the Judge disagree, the Judge is free to use another guideline. As a practical matter, the Probation Department does a guideline analysis and the Judge heavily relies on that. In a case this big, you can bet that Probation was already consulted and calculated the guidelines the same as the defense and prosecution.

Third: What happens if the Judge disagrees and finds another offense guideline is more analogous? Does Lindh get to withdraw from the deal? No, because the plea agreement is under Rule 11(e)(1)(B) instead of Rule (11)(e)(1)© which would so allow.

Fourth: The added felony count to which Lindh pleaded, carrying explosives in commission of a felony, is a sentencing enhancement crime. It is the equivalent of carrying a weapon in furtherance of a drug offense, although in that case the term would only be five years. Guidelines are not "calculated" for this offense but instead simply provide that the sentence imposed will be the term specified in the statute. Here that means a flat ten year sentence is added onto the sentence for the underlying crime of providing services to the Taliban.

Fifth: Because John Walker Lindh has no prior record, he would normally have a criminal history category of Level I. But another terrorism guideline, 3A1.4, says that if the offense involved or was intended to promote a federal crime of terrorism, the criminal history category is bumped to level VI, the highest level. In addition, the offense level gets bumped by twelve. So here, where Lindh would have been a level 26 and category I under the analogous guideline for providing his services, he is now a level 38 and category VI.

Sixth: Lindh does receive three points off for accepting responsibility, bringing him to a level 35 and a Category VI. Guideline range: 292-365 months. But, the maximum allowed by statute for the offense to which he plead is ten years. Thus, the ten year sentence on the count of providing services to the Taliban is a virtual certainty and is also the most he can receive on that count.

Seventh: The mandated consecutive ten year sentence for the enhancement crime of carrying an explosive is tacked onto the ten year sentence for the supplying services offense, bringing Lindh to a 20 year sentence.

Eighth: He has waived his right to appeal the sentence so long as it does not exceed 20 years which would be a legally impermissible sentence.

Other notes: He did not plead to supplying material aid to a terrorist organization. He pleaded guilty only to providing services to the Taliban. He did not plead to the count charging carrying a firearm or explosive during the commission of a violent crime. His guilty plea was to a lesser crime of carrying an explosive during the commission of any felony. He gets credit for time served from the day of his seizure by the military in Afganistan (Dec. 1, 2001). Neither side will argue for more or less than 20 years.

Our conclusion: Lindh gets 240 months or 20 years. (Federal sentences are imposed in months, not years). He does 85% or 204 months. His sentence will be reduced further by the time he has spent in confinement from December 1, 2001 until the sentencing date of Oct, 2002, approximately ten months.

Instapundit is a Prince. His recent mentions of us have resulted in over 1,000 hits since yesterday--and he's on vacation! Thanks to Jason Rylander for his very complimentary mention of our site. We are adding his blog to our favorites on TalkLeft today. Also thanks to Dan Dodson, Media Affairs Director of the National Association of Criminal Defense Lawyers for alerting members to us on the Criminal Justice reporters list-serv he subscribes to. For last week, thanks to Vodka Pundit for a very big number of referral hits.

Here are some of today's op-ed pieces we like discussing the plea deal of John Walker Lindh (we'll add to this as the day progresses):

"Prosecuting the War and its Terrorists" by Juliette Kayyem , a former member of the National Commission on Terrorism, now a counterterrorism expert at the John F. Kennedy School of Government at Harvard, in the New York Times. Her theme: This is hardly a victory for the Justice Department. The Government's claim that the 20 year sentence is proof of the strength of its evidence against Lindh defies logic.

"Plea Suggests U.S. Prefers to Avoid Court" by Adam Liptak in the New York Times: He and legal analysts he has interviewed express concerns that the Government may try to avoid federal court prosecutions in favor of detentions and miltiary tribunals in the future.

"A Legal War Without Victory" by David Lindorff in Salon Magazine (paid subscription only). Quote: "The plea agreement appeared to be a tacit acknowledgement by the federal government that its case was at best uncertain against the 21-year-old Islamic convert. Dropped were all charges of terrorism, consorting with al-Qaida and attempting to kill Americans. Nor did the agreement mention the government's earlier claim that Walker had been guilty of participation in a plot to murder CIA agent Johnny Spann."

A Collapesed Terror Case, Boston Globe Editorial: "Even less convincing was the triumphalist crowing of Attorney General John Ashcroft, who said the plea agreement with Lindh's defense counsel was an ''important victory in America's war on terrorism. However, the two charges to which Lindh pleaded guilty were providing services to the Taliban and carrying explosives - in this case two grenades - during the course of that felony. If Lindh's conviction on those charges represents an important victory in the war on terrorism, as Ashcroft claims, then that war must not be going very well."

James Brosnahan, John Walker Lindh's chief lawyer, discussed Lindh's decision to plead guilty and its ramifications Monday night on CNN's Wolf Blizter Reports. Kate Snow conducted the interview. Some highlights:

Plea discussions began about six weeks ago. At the "point where it became clear that the government would be willing to dismiss all terrorist charges and the charge that John conspired to kill Americans, it became something that we had to pay serious attention to, and we did. "

In discussing why the defense team and John Walker Lindh and his family seem updeat about the deal which includes a twenty year sentence, Brosnahan says it is partially because of how much worse it could have been. "As we saw it, we might get very fortunate in the case and maybe only get convicted of one or two crimes, that could be 40 years quite easily. So that was the problem."

On his client: "He's a scholarly person. He very much wants to study. When we discussed the terms of this plea bargain, he wanted to be sure he could study not only Arabic, not only Islam, but also other subjects, American history, political history."

Brosnahan thinks his client will be safe in jail because "This verdict is true. The thing about this verdict is it's true. It does reflect what he did. He was a soldier in the Taliban army in the northern part of Afghanistan, fighting the Northern Alliance. It has nothing to do with the Americans. "

On Attorney General John Ashcroft's prior statements about how much evidence the Government had against Lindh: "Today nine of those counts fell like stones and are gone. So no, he is not a terrorist. I've not heard what the attorney general said, but if he said there's anything in this case that establishes John as a terrorist, I think he'd better read the pleadings."

Lead prosecutor Paul McNulty was interviewed next. The only highlight to us was his answer when asked about the Spann family's negative reaction to the deal. "I don't think [the Spanns] represent the vast majority of those men and women in military. We had a number of them here with us today who were going to be witnesses in our hearings this week, and they were quite satisfied, in fact, quite pleased. They recognized that this was a significant sentence. I personally told them of the sentence, and the reaction was very positive. "

(Quotes from transcript available at Lexis Nexis .)