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Tag: Mandatory Minimums (page 2)

Hillary Again States Opposition to Mandatory Minimums

Via Sentencing Law and Policy, Hillary was interviewed by Vibe Magazine last weekend.

VIBE: In your speech, you talked about having first, second, and third chances for children. In the last ten years the rate of incarceration of women has increased exponentially. I don’t think the average person realizes that it’s not 50% or 100%, it’s like 750% in the last thirty years. There are a disproportionate number of African-American men and women who are going to be released from prison with felony convictions. What do we do about that group of people who are effectively disenfranchised when they come out?

CLINTON: Number one, we need to divert more people from the prison system. We have too many people in prison for non-violent drug offenses, which disproportionately impacts on the African-American community. That’s why I’ve been a strong advocate of eliminating the disparity between crack cocaine and powder cocaine [sentencing].

There may have been a reason for it 25 years ago but there isn’t any justification for it now. But it also means that in the prisons themselves, we’ve got to get back to the services that used to be there.

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Mandatory Minimum Rally In Advance of Hearing Tomorrow

Tomorrow morning, the ACLU will hold a rally in Washington on the unfairness of mandatory minimum sentences, and specifically, the need to repair the 100:1 crack to powder cocaine sentencing disparity.(Received by e-mail, no link yet.)

Speakers at the rally include:

  • Dorothy Gaines, who was charged with conspiracy to deliver crack cocaine due to her then-boyfriend’s alleged participation in a large-scale drug operation as a driver. Ms. Gaines served 6 years of a 19½ year sentence before being granted clemency by President Clinton in 2000.
  • Karen Garrison, whose sons are currently serving 15+ years in federal prison for non-violent crack cocaine offenses.
  • Kemba Smith, who was convicted in 1994 and sentenced to 24.5 years on charges of conspiracy to distribute crack cocaine and related charges after a failed relationship, despite her lack of involvement in any drug dealing operation.

The ACLU's written testimony on the need to reform these draconian, unfair penalties is here.

Several bills to reduce the injustice are pending in Congress. I outlined them here. A hearing is scheduled on them tomorrow before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. [More...]

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The Sentencing of Sergeant Patrick Lett

Update: Here's the cert petition (pdf) filed today, which Prof. Berman quotes from here. They'd also welcome amicus briefs.

A must-read article in the New York Times today about Sgt. Patrick Lett and his cocaine sentencing in Alabama. Law Prof Doug Berman of Sentencing Law and Policy, who is now representing Sgt. Lett pro bono, has lots more.

First, about Sgt. Lett:

Sgt. Patrick Lett, had served 17 years in the Army, including two tours in Iraq, and he had pleaded guilty in federal court to selling cocaine. It was up to Judge William H. Steele, a former marine, to decide how to punish him. “I don’t normally see people standing before me in uniform,” Judge Steele said.

Sergeant Lett’s commanding officer, Capt. Michael Iannuccilli, testified that the man he knew was “a patriot, father and a good man.” “I would gladly deploy to Iraq with him and entrust my life to him,” Captain Iannuccilli said. “I’d trust my soldiers’ lives to him. He’s been nothing but an exemplary soldier.”...

The judge's hands were tied by the mandatory minimum 5 year penalty. He wanted to give Lett as short a sentence as possible. Read below what happened:

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Idaho Considers Bill to Lessen Mandatory Minimums

A bill introduced in Idaho to allow judges to depart below state mandatory minimum sentencing laws for defendants marginally involved in drug dealing will get a full hearing before the state's House Judiciary, Rules and Administration Committee.

The bill is co-sponsored by three Republicans and one Democrat.

Idaho now has 7,400 people behind bars. More than half of them are there due to drug-related offenses. The state has shipped about 500 people to other states because there's no more room in prisons in Idaho.

Under the bill, judges could opt for shorter, treatment-focused sentences for addicts convicted of drug-dealing crimes, on the presumption that if they get clean they're less likely to re-offend.

One Republican legislator says of the bill,

"Our prisons are pumped full. It would be nice to give judges discretion about whether to send somebody to prison or to some other treatment program. In reality, they're the ones that are sitting on the front lines, not the legislators who are making the laws."

Another bill pending in the state would expand drug courts. Hopefully we'll see other states -- and ultimately the feds -- follow suit.

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Mukasey Asks Congress to Block Release for Non-First Time Crack Offenders

Bump and Update: The ACLU reports on Mukasey's testimony today. The Washington Post and Sentencing Law and Policy have more.

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Original Post: 2/6/08

Bad news from Attorney General Michael Mukasey today. In written testimony to be delivered at a House Judiciary Committee hearing tomorrow, he will ask Congress to block the release of crack offenders currently serving sentences except for first-time, non-violent offenders. It's unclear whether Congress would act in time.

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The Criminal Justice Moment of the South Carolina Debate

There was only one reference to criminal justice issues in the South Carolina debate. It had Obama and Hillary in agreement. John Edwards didn't weigh in on it, but he would agree as well.

From the transcript: [More....]

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Crack Cocaine Guideline Reductions and Mandatory Minimums

Adam Liptak in the New York Times has a new column on the recent sentencing guideline reductions for crack cocaine. He posits that as a result of the reductions, Congress may be less likely to reduce mandatory minimum penalties for crack cocaine since Judges now have more discretion in sentencing and Congress won't want to give judges unfettered discretion.

There are several bills kicking around Congress meant to harmonize cocaine sentencing laws. But, perhaps perversely, the Supreme Court’s decisions last Monday may make Congressional action less likely. Letting judges have too much discretion does not sit well with some legislators, and that discretion can be controlled through mandatory minimums.

His source for that theory is former (very conservative) Judge and victims' rights advocate Paul Cassell. I've never agreed with Cassell about anything, particularly his attempts to repeal Miranda rights, push the death penalty and make light of false confessions and wrongful convictions, but I sure hope he's wrong on this one.

Liptak describes the penalties for powder as if they are way too lenient,

Fifty grams of crack equals a guaranteed 10 years. It takes five kilograms of powder to mandate the same sentence. Five kilos is a lot of cocaine.

I think that's a backwards way of looking at it. The better view is that ten years is a long jail sentence -- for any non-violent drug offense, regardless of the quantity.

I'm wondering if Liptak's use of the phrase "a lot of cocaine" is the result of someone whispering in his ear that the only way the crack penalties go down is if the powder penalties go up. That would be a terrible injustice.

The pending reform bills are here. Two call for equalization. The bills could be put on the agenda early next year. It's time to start contacting your Senators and Congresspersons and telling them to equalize the crack and powder cocaine penalties at the current powder levels. Two wrongs don't make a right.

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The Crack-Powder Cocaine Disparity: A Chronology

There will be a Democratic debate tomorrow in Iowa, where the January 3 primary essentially is a toss-up between Hillary Clinton, Barack Obama and John Edwards.

In light of the Supreme Court decision this week in Kimbrough v. U.S. (pdf)authorizing federal judges to consider the great disparity in penalties for crack and powder cocaine offenses in deciding whether to sentence crack defendants below the federal sentencing guidelines ("...it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes") and yesterday's decision by the U.S. Sentencing Commission to make retroactive the recent and relatively minor crack cocaine sentencing guideline reductions, I'm hoping the candidates will be asked their positions on mandatory minimum sentences and what they will do as President to change them.

I've put together a chronology of how the mandatory sentences came about and what efforts to change or resist changing them have been made since.

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How Will the Courts Resentence Crack Cocaine Offenders?

In light of yesterday's decision by the U.S. Sentencing Commission to make the reduction in federal sentencing guidelines for crack cocaine offenses retroactive, many are wondering just how these reductions will be effected.

The Sentencing Commission has answered this in part by modifying U.S.S.G. 1B1.10. Here's the new version. [Note: changed to user friendly link]

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Pending Mandatory Minimum Sentence Reduction Bills

Sen. Edward Kennedy released a statement today praising the Sentencing Commission's retraoctivity decision regarding the minor reductions in crack cocaine sentencing guidelines. He also urges passage of S. 1685 which he co-sponsored with Diane Feinstein, Arlen Specter and Orrin Hatch (that ought to tell you right there it's not a good bill.)

The bill insufficiently cuts the disparity between crack and powder. Instead of 5 grams of crack, the threshold for the 5 year mandatory minimum sentence would be 25 grams. For powder, it's currently 500 grams.

Instead of 50 grams of crack, the bill makes the threshold for the 10 year mandatory minimum sentence 250 grams. The threshold for powder is currently 5 kilograms (5,000 grams.)

The bill does eliminate the mandatory minimum for first timers who possess for personal use.

Joe Biden's bill, S. 1711, co-sponsored by John Kerry, Russ Feingold and Carl Levin is better. It equalizes the penalties between crack and powder at the current powder levels. But, the reductions are not retroactive, so they won't help the 19,500 offenders currently serving the disparate sentences.

And, as usual, Biden can't leave well enough alone. He has to go and increase funding for the war on drugs. [More....]

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Sentencing Commission Makes Crack Penalty Reductions Retroactive

By a unanimous vote, the U.S. Sentencing Commission has made its November, 2007 reduction in crack cocaine penalties retroactive. The effective date is March, 2008. The statement is here.

This is very good news, but note the limitations:

Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.

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Crack-Powder Guideline Retroactivity Ruling Expected Today

Update: The Commission has unanimously voted for retroactivity. Press Release is here. Reaction and newer post here.

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[Note: This is a long post, covering the issues of the guidelines, mandatory minimums, the informant system of sentence reduction and the need for Congress to act to change the law.]

The U.S. Sentencing Commission will vote today on whether to make the recently enacted small (two level) guideline reduction for crack cocaine offenses retroactive so that some of the 19,500 inmates currently serving federal crack sentences can benefit from it. It is widely expected they will vote for retroactivity and I'll update and bump this post when they do.

The thing to remember is, this doesn't solve the problem. The much bigger problem is with mandatory minimum sentences. Only Congress can change those. Neither yesterday's Supreme Court decisions nor the guideline reduction addresses this problem. Today, like yesterday, judges are powerless to go below the 5 or 10 (or in some cases 20) year mandatory minimum sentence unless the defendant cooperates with the Government and the Government asks the judge to impose a lower sentence. The judge can't do it on his own -- or at the request of a defendant. That's just wrong-headed.

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The Failure of the War on Drugs

Providence, Rhode Island columnist Froma Harrop today exposes some of the statistics from the War on Drugs, calling it a failure:

Since it started in 1970, American law enforcement has arrested 38 million people for nonviolent drug offenses, nearly 2 million last year alone. The number of people jailed for violent crimes has risen 300 percent, but the prison population of nonviolent drug offenders has soared 2,558 percent.

The culprit, as Harrop says, is mandatory minimum sentences. [More...]

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Calif. Vet Needs Help Avoiding Mandatory Minimum

In September, I wrote about Sarge Brinkley, a young injured Army vet who returned to the U.S. addicted to pain pills. Once home, he robbed two pharmacies for percocet.

I'm writing again because his preliminary hearing is November 16, and he needs your help. Please send a letter to convince the D.A. to offer a reasonable deal.

A West Point graduate who is currently facing twenty-odd years in prison for robbing a Walgreens under California's minimum sentencing laws. He used a gun (unloaded) and robbed the drugstores of only Percocet - no money, harming nobody.

Here's the kicker -- he was addicted to the opiates after smashing his hip while serving abroad in the Army -- the military medical system
kept misdiagnosing him, and feeding him more of the painkillers. Add in some serious PTSD (he guarded mass graves in Bosnia from desecration at one point) and he spiraled down.

Sargent turned himself in, has been in a rehab program in county jail for over a year and a half while he awaits sentencing, and by all accounts is
doing well. The Santa Clara DA wants to chuck the book at him, and he'll be gone.

The California Report covered Sarge's case last week.

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Calif. Vet Looking at Big Mandatory Minimum Sentence

Meet Sargent Binkley, an army vet currently facing twenty-plus years in Santa Clara, CA. His high school buddies are trying to publicize his plight and have set up a website. Here's his sad story.

Sargent Binkley is a high school classmate of ours and West Point graduate who is currently facing twenty-odd years in prison for robbing a Walgreens under California's minimum sentencing laws. He used a gun (unloaded) and robbed the drugstores of only Percocet - no money, harming nobody.

Here's the kicker -- he was addicted to the opiates after smashing his hip while serving abroad in the Army -- the military medical system
kept misdiagnosing him, and feeding him more of the painkillers. Add in some serious PTSD (he guarded mass graves in Bosnia from
desecration at one point) and he spiraled down.

Sargent turned himself in, has been in a rehab program in county jail for over a year and a half while he awaits sentencing, and by all accounts is
doing well. The Santa Clara DA wants to chuck the book at him, and he'll be gone.

More....

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