NY Federal Judge Blasts Mandatory Minimums in Drug Cases

Via Law Prof Doug Berman at Sentencing Law and Policy: Judge Jack Weinstein has written another scathing indictment of our drug sentencing laws and policy in a multi-defendant crack cocaine case.

The case is United States v. Bannister, No. 10-CR-0053 (E.D.N.Y. Mar. 24, 2011), and the 125 page opinion is available here. Some quotes below:[ More...]

Our rates of imprisonment, income inequality, and unemployment are either the highest or among the highest of the world's advanced economies, while our rates of food security and life expectancy are among the lowest.

Significant reforms are needed in our sentencing regime. The Fairness in Sentencing Act of 2010 reduced the dubious 100:1 powder/crack ratio to a 17.8:1 ratio. It did nothing to remove the sentencing regime's dependence on arbitrary drug quantities — not just with regard to crack cocaine but other drugs as well — that bear little relationship to the harm a defendant has done to society or to the danger of his inflicting further harm. Harsh, disproportionate mandatory sentences impose grave costs not only on the punished but on the moral credibility upon which our system of criminal justice depends.

Judges approach the grave responsibility of sentencing criminals with all the thoughtfulness and limited insight that their knowledge and wisdom can muster.... Mandatory minimum sentencing provisions, leaving no alternative but lengthy incarceration, prevent the exercise of this fundamental judicial duty. Such laws are ― overly blunt instruments, bringing undue focus upon factors (such as drug quantities) to the exclusion of other important considerations, including role in the offense, use of guns and violence, criminal history, risk of recidivism, and many personal characteristics of an individual defendant. It is difficult to conceive of a system of mandatory minimum sentences that could effectively anticipate and provide for such factors.

For nonviolent, low-level drug crimes, the goals of incarceration — general and specific deterrence, incapacitation, retribution, and rehabilitation — could in most cases be achieved with limited incarceration, through a system of intense supervised release utilizing home visits; meetings with parole officers; a combination of counseling, drug and alcohol treatment, education, job training, and job placement; and electronic monitoring to prevent flight, promote positive choices, and deter and detect incipient crime. Such a regime would likely be more effective in reducing crime and much less costly than imprisonment. Given discouraging economic, social, and psychological conditions, it seems doubtful that the long sentences of incarceration imposed will appreciably reduce crime.

Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape. Otherwise, its vaunted belief in redemption and deterrence — both specific and general — is a euphemism for cruelty. These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation. Even now, they are capable of useful lives, lived lawfully.

Judge Weinstein also discusses the difference between murderers and violent offenders and drug dealers.

Illegal drugs are dangerous products. Reportedly, they impair users‘ health, diminish their usefulness to their families and employers, and increase their likelihood of committing further crime. But the moral burden for drug use is borne primarily by the users themselves. Putting aside cases where users become helplessly addicted as children, drug habits are generally the product of voluntary choices. The notion of the drug pusher preying upon defenseless, sober individuals, coercing them to sample addictive drugs so that they may become lifelong customers, has little congruence with reality as observed in court.

Unfortunately, Judge Weinstein's views will not be adopted by many federal judges.

Crack cocaine is not the only substance that produces unfair results. Meth is in many ways the new crack. For example, if the government chooses to have the lab test the form and purity of the meth, and the meth is d-methamphetamine hydrochloride (as opposed to its optical isomer, l-methamphetamine hydrochloride), it's deemed to be "actual" meth, and the sentence is 10 times greater. If the purity of the "actual meth" is 80% or greater, it's deemed to be "Ice", which is also punished ten times more severely. (The difference is with "actual meth" the sentence is based on only the amount of d-meth in the total substance but if it's "Ice" the sentence is based on the entire weight of the mixture.) Put another way:

If the methamphetamine is determined to be Ice, the entire weight of the methamphetamine and remaining substances are included in the calculation of the offense level and then punished at a rate of 10-1 in relation to a simple usable mixture or substance containing methamphetamine. If the methamphetamine is determined to be actual methamphetamine, only the weight of the actual methamphetamine within the usable mixture or substance is included in the calculation of the offense level, and it also is punished at a rate of 10-1 in relation to a simple usable mixture or substance containing methamphetamine. If the methamphetamine is treated simply as a usable mixture or substance containing methamphetamine, the entire weight of the usable substance is included in the calculation of the offense level.

Importantly, “[i]n the case of a mixture or substance containing … methamphetamine, use the offense level determined by the entire weight of the [usable] mixture or substance, or the offense level determined by the weight of the … methamphetamine (actual), whichever is greater.”

....Under the Guidelines, however, the distinct differences between specific “types” of methamphetamine are very important and can have a dramatic impact on the base offense level and the eventual sentence imposed. The Guidelines consider three types of methamphetamine: Ice, which is “a mixture or substance containing d-methamphetamine hydrochloride of at least 80 percent purity[]”; actual methamphetamine, which “refer[s] to the weight of the controlled substance itself, contained in the mixture or substance[]”; and methamphetamine, which refers to a usable or marketable mixture or substance containing methamphetamine.

The Government, in its sole discretion, gets to choose what kind of testing to ask for, and when it so chooses, a defendant's guidelines will be 10 times greater than had the Government not asked for the form and purity testing.

The current system is also particularly cruel to the undocumented and non-citizens who will be deported after their sentences, whom the Bureau of Prisons treats differently when it comes to providing drug and alcohol treatment and educational and vocational training while in prison.

"Removable aliens" are not eligible to participate in the RDAP (residential drug and alcohol program) that allows up to a year off a sentence if completed, because according to the regulations, they cannot complete the mandatory community-based phase of the program and are therefore ineligible for the program's early-release. See, 28 C.F.R. § 550.53(b)(3); id. § 550.55(b)(1); § 550.56; and generally, 18 U.S.C. § 3621(e). See also, U.S. Bureau of Prisons Program Statements 5331.02 Early Release Procedures under 18 U.S.C. § 3621(e), at 3, §5(1) (3/19/2009) and7310.04, Community Corrections Center(CCC) Utilization and Transfer Procedures, at 11,§(10)(b)12/16/1998.

They even receive lower wages than a citizen inmate because removable inmates do not receive the release gratuity when released from prison. U.S. Bureau of Prisons Program Statement 5873.06, Release Gratuities, Transportation and Clothing, at 5, §7(e) (8/6/2003), available here.

Inmates who can't comprehend English are not even eligible for the non-residential drug treatment program. (U.S. Dep't of Justice, Psychology Treatment Programs, Program Statement, § 2.4.5, at 6 (Mar. 16, 2009), let alone a sentence reduction. While "limited English proficient inmates" are obligated to attend English as a Second Language courses to gain sufficient English competency to participate in the drug program, 28 C.F.R. § 544.40, "sentenced aliens with a deportation detainer" appear to be exempt, if not prohibited, from attending these classes. Id. § 544.41(a)(3).

As for vocational programs, while "removable aliens" are eligible to participate, they will only be selected to participate in an institution’s occupational programs "if Bureau resources permit after meeting the needs of other eligible inmates."

In addition, the Bureau of Prisons’ treats "alienage" as a public safety factor in classifying a prisoner’s security status, which means a non-citizen has a higher security classification than does a citizen. The higher classification results in the non-citizen inmate’s ineligibility to serve his or her sentence in a minimum security facility, even though he is a first-time, non-violent felony offender. (U.S. Bureau of Prisons Program Statement 5100.08, Inmate Security Designation and Custody Classification, Ch.5 at 9 (9/12/2006).

The higher security classification based on alienage also prevents non-citizen inmates from working beyond the perimeter of the institution, receiving furloughs or serving the last ten percent of his or her sentence in a halfway house or Community Corrections Center. (See, 28 C.F.R. § 550.55(b); Federal Bureau of Prisons, Program Statement 5100.04: Security Designation and Custody Classification Manual, Chs. 7-9, 7-10, 10-4, 10-29, 11-7, (June 15, 1991.)

Non-citizen inmates subject to removal are just being warehoused. What a waste of our resources, considering it costs more than $20,000 a year to incarcerate a federal inmate.

Mandatory minimum drug sentences based on the quantity of drugs, especially those based on drug-type with hair-splitting differences like crack and meth, are unfair, arbitrarily applied and discriminatory. They need to be repealed.

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  • Display: Sort:
    I agree, but (none / 0) (#1)
    by jbindc on Fri Apr 01, 2011 at 01:15:03 PM EST
    Don't you then run into the problem that a defendant in say, Alabama with 5 grams of heroin gets a much different sentence than a defendant with 5 grams of heroin in Ohio?

    Is that fair?

    Just curious what defense attorneys' positions are on this....

    Not fair imo... (none / 0) (#2)
    by kdog on Fri Apr 01, 2011 at 01:37:01 PM EST
    but better than an "equal" federal draconian punishment over noncrime...less time is less time.

    And nothing new with state-level criminal law...forget differences in sentencing state to state, what is a crime varies from state to state.  Is it fair that what gets you a comp in Vegas gets you legally robbed in NYC?

    The law and a sense of fairness...rarely shall those two meet.


    This is federal sentencing (none / 0) (#3)
    by jbindc on Fri Apr 01, 2011 at 01:39:22 PM EST
    So my question is for a crime in Alabama a defendant could get significantly more or less time than a defendant convicted of the exact same crime in Ohio.

    Mandatory minimums have nothing to do with state law.


    I gotcha... (none / 0) (#4)
    by kdog on Fri Apr 01, 2011 at 01:58:31 PM EST
    I still say better if one gets less than the current mandatory min. than none...but not "fair", I agree.  

    Again, "law" and "fair" don't often meet...so that would be nothing new.  In fact, a futile attempt at a perverted "fairness" is what helped bring about these terribly unfair mandatory mins in ther first place.


    How about (none / 0) (#5)
    by PatHat on Fri Apr 01, 2011 at 03:26:32 PM EST
    leaving drug-related cases mostly to the states in the first place?

    Better... (none / 0) (#6)
    by kdog on Fri Apr 01, 2011 at 03:50:16 PM EST
    but the best thing is to leave drug related matters to individuals, and the FDA for standards and measures purposes only.

    Well that will never happen (none / 0) (#7)
    by jbindc on Fri Apr 01, 2011 at 05:58:25 PM EST
    There will never be a time when there is a free-for-all, do-what-you-want with any drug, no laws ever.  Since while you may think your personal drug use is only your business, it's not really - it does have costs borne by all of society in the form of the serious public health issues involved.  That's why alcohol is regulated and food is regulated and tobacco is regulated and prescription medication is regulated.

    What costs? (none / 0) (#11)
    by kdog on Sat Apr 02, 2011 at 08:51:47 AM EST
    I see bankers screwing society, arms dealers too...drug users and sellers not so much.  Addicts, yes...they cost.  But the criminalization/prohibition model has failed to achieve any reduction to those costs, only added new costs and new pains and lost rights.

    A little regulation can be prudent...prohibition, not at all prudent.  


    I'm whipsawed... (none / 0) (#8)
    by diogenes on Fri Apr 01, 2011 at 07:57:22 PM EST
    From the judge's opinion:
    "But the moral burden for drug use is borne primarily by the users themselves."

    From the blog:
    "The current system is also particularly cruel to the undocumented and non-citizens who will be deported after their sentences..."

    If one really believes that drug use is a moral choice (as opposed to a disease which is pandered to by dealers who should be deterred by severe punishment), then perhaps those with the highest stake in staying in the US (the undocumented who hope to become citizens one day) can choose to not use or possess drugs.  

    Re:Pandering (none / 0) (#13)
    by Harry Saxon on Sat Apr 02, 2011 at 10:14:20 AM EST

    (as opposed to a disease which is pandered to by dealers who should be deterred by severe punishment)

    We don't lock up bartenders, liquor store owners, etc. who 'pander' to alcoholics, so your analogy fails, doc.


    Site Violation - spam (none / 0) (#12)
    by MO Blue on Sat Apr 02, 2011 at 09:29:35 AM EST

    Spam violator! (none / 0) (#14)
    by Harry Saxon on Sat Apr 02, 2011 at 10:15:08 AM EST

    And he doesn't (none / 0) (#15)
    by Zorba on Sat Apr 02, 2011 at 10:26:11 AM EST
    even know how to create a link.  Incompetent spammer.

    SITE VIOLATOR (none / 0) (#16)
    by Peter G on Sat Apr 02, 2011 at 01:09:42 PM EST
    The title of this comment is the flag that Jeralyn has requested regulars use to alert her to this sort of problem.

    SITE VIOLATOR (none / 0) (#17)
    by Peter G on Sat Apr 02, 2011 at 01:10:12 PM EST