Our Federal Prisons Are Fueled By Drugs

That’s the takeaway from this report by the federal courts and U.S. Sentencing Commission.

To summarize, there are almost 200,000 people in federal prison today, and almost half of them (or 48%) are there for drugs. Almost all of them (93%) are men, and the vast majority are young, minority men. The breakdown is 35% Hispanic, 35% black, and 27% white.

Here are the top five types of cases:

  1. Drugs (48%)
  2. Guns (19%)
  3. Immigration (8%)
  4. Child pornography and sex offenses (7%)
  5. Major frauds (5.8%)

For fraud cases, the median dollar loss was $800,000, in case you were wondering.

For the drug cases, here’s the breakdown among drugs:

  1. Methamphetamine (32.8%)
  2. Powder cocaine (24.2%)
  3. Crack cocaine (20.9%)
  4. Heroin (9.5%)
  5. Marijuana (8.4%)

Finally, the report shows how often people are sentenced below, above, or within the range that’s recommended by the federal sentencing guidelines. Here’s a crash course on the guidelines if you want to know how they work.

  • Half were sentenced within the guideline range (50.4%)
  • A quarter were sentenced below the range with the government’s support (24.7%)
  • One-fifth were sentenced below the range without the government’s support (21%)
  • Relatively few were sentenced above the guideline range (3.9%)

Cyber Search Warrants Are Going to the Dogs

It’s true, and reportedly, even the recent search of Jared Fogle’s home involved a Labrador who found a thumb drive of potential evidence.

The dog is one of a handful or two nationwide that’s trained to sniff out electronics and their component parts based on a chemical that’s common to all of them. Law enforcement won’t identify the chemical, but after a few months of training, the dogs learn to detect its odor. They can then be used to search for anything from laptops, tablets, and hard drives to thumb drives, circuit boards, and tiny memory cards.

It’s a relatively new advent but one that’s catching on quickly.

Still, we should remain wary of the potential for abuse. A lot depends on how well these dogs are trained and how scrupulously they are used by their handlers, among other things.

Child-Pornography Possession in State and Federal Court

Among the common offenses for which people must register as sex offenders is possession of child pornography.

Under California law, possession of child pornography is a felony, though it may be punished by imprisonment either in the county jail for up to one year or in state prison for 16 months, two years, or three years. Pen. Code § 311.11(a). If you possess more than 600 images and at least ten of them depict a prepubescent minor or one under the age of twelve, then you’re facing a possible top term of five years instead of three. Id. § 311.11(c)(1). The same rule applies if you possess any images that portray sadomasochistic activity. Id. § 311.11(c)(2). To count the number of images, each still photo or depiction counts as one image, and each motion picture or video counts as fifty. Id. § 311.11(f). If you have prior convictions for child pornography or any other offense that requires sex-offense registration, then you’re looking at state prison for two, four, or six years. Id. § 311.11(b).

A lot can turn, however, on how a prosecutor charges the case, and several related, alternative offenses may be charged as felonies or misdemeanors. See generally id. §§ 311-312.7 (cataloging the criminal obscenity laws).

Under federal law, possession of child pornography is a felony punishable by imprisonment for up to ten years in all cases or twenty years if any image depicts a prepubescent minor or one under the age of twelve. 18 U.S.C. § 2252A(a)(5), (b)(2). If you have prior convictions for child pornography or another offense that requires sex-offense registration, then you’re looking at a maximum sentence of twenty years and a mandatory minimum of ten. Id.

Alternatively, if the prosecutor charges you with receiving child pornography rather than possessing it, you face a mandatory-minimum sentence of five years and a maximum sentence of twenty. See id. § 2252A(a)(2), (b)(1). Tack on a prior conviction and you’re looking at a minimum of fifteen years and a maximum of forty. Id. If you’re not clear on the distinction between receiving and possessing or why the former triggers a mandatory-minimum sentence while the latter doesn’t, you’re not alone. No one understands it, but it helps prosecutors obtain guilty pleas by offering to dismiss the receipt charge if you plead guilty to the possession or by threatening to add the receipt charge if you don’t.

In federal court, your actual sentence will depend on how the court applies the federal sentencing guidelines. See generally U.S.S.G. § 2G2.2 (setting forth the guideline for child-pornography possession). As in state court, there are enhancements based on the number of images, the age of the minors, and any sadomasochistic imagery (among others). In federal court, each still photograph or depiction counts as one image, and each motion picture or video counts as 75 images. Generally, in better-case scenarios, you’re looking at a guideline range of around two years. In worse-case scenarios, even for simple possession, you could well be facing eight to ten years in prison or more.

Many well-meaning people believe these punishments are excessive, and among the most criticized is a federal provision that adds two aggravating points to your guideline calculation if you used a computer to commit the offense. Id. § 2G2.2(b)(6). In reality, everyone receives this enhancement because, nowadays, child pornography (and all pornography) is possessed virtually exclusively through the use of computers. Simply, it makes no sense to consider them as an aggravating factor at sentencing.

For these reasons, in federal court, child-pornography possession generates more below-guideline sentences than any other category. In fact, in a 2010 survey of federal judges by the U.S. Sentencing Commission, over 70% of respondents—representing nearly 70% of all active, sentencing judges—believed the guidelines for possession and the mandatory minimum for receipt were too high.  Just two percent thought they were too low.

Grotesquely Severe Sentences

“It requires one with more expertise in the area than I possess to offer a complete analysis, but it does seem justified to say this: Our resources are misspent, our punishments too severe, our sentences too long.”

These words and others were uttered in 2003 by Justice Anthony Kennedy of the U.S. Supreme Court. They were delivered in his keynote speech that summer at the annual meeting of the American Bar Association, and they were intended to challenge all lawyers to care about what happens to others when we lock them up. To help reduce federal sentences generally and repeal mandatory minimums in particular. To sow more balance and reason in our system of corrections.

As the work continues, here are two stories of courageous, conscientious judges who strove to do justice and did.

The first involves a judge who sentenced a man for three armed carjackings. At trial, the man was convicted of the three carjacking counts as well as three corresponding counts for use of a gun, even though it was an accomplice who actually carried the gun. Before trial, the government had offered to deal the case for up to 12 years by dismissing the gun counts, but after trial, the judge was forced to sentence the man to 57 years because he had no choice: the mandatory minimums on the gun counts added 45 consecutive years to the 12-year sentence. None of the man’s co-defendants, who all pleaded guilty, received more than six years. The judge was aghast, and he began to speak out against such “grotesquely severe sentences” caused by the use of mandatory minimums to “annihilate a defendant who dares to go to trial.” And more recently, he was able to persuade the government to vacate two of the man’s convictions so that he could be resentenced to time served, having served 20 years with 37 left to go.

The second involves a judge who sentenced a man for downloading child pornography. After the man was convicted at trial, the federal sentencing guidelines computed a range of 21 to 27 years, and prosecutors asked for the statutory maximum of 20 years. The judge did something different. Before dismissing the jury, he asked each member what he or she thought would be an appropriate sentence. The jurors recommended an average sentence of 14 months, so the judge considered that along with other factors and sentenced the defendant, who had no other criminal history, to the mandatory minimum of five years in prison. The procedure was unusual but not without precedent, and according to one expert, it can be a wise thing to do. “In capital cases, getting the jury’s sanction for a death sentence is a crucial part of making that sentence legitimate, because the jury represents the society. I don’t see why, in other cases, the same logic shouldn’t hold.”

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