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%)

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.”

These Walls Are Thin

A federal court of appeals recently issued an interesting opinion that touched on law enforcement’s use of new radar technology that can peer through the walls of your home. Reportedly, at least fifty agencies have quietly equipped their agents with such devices, and other, similar devices boast even greater capabilities.

Here’s the backstory. The defendant was on the lam. He’d been convicted of armed robbery and served time for it but then stopped reporting to his probation officer and disappeared. Federal marshals went looking for him and were able to tie his name to a residential address, so they went to that address with an arrest warrant. The warrant gave them the right to enter the home if they had reason to believe the defendant was there at the time. Payton v. New York, 445 U.S. 573, 603 (1980). From outside the walls, the deputies used a handheld radar device to detect human breathing and movement on the inside, and it registered someone’s presence. Based on that and other information, they stormed the residence, found the defendant there, arrested him, and seized two guns they found with him. The guns led to a new conviction for felon in possession of a firearm.

On appeal, the defendant argued that the deputies entered the home without sufficient reason to believe he was there, given that they searched the home using the radar device without a warrant in violation of the Fourth Amendment. Previously, the Supreme Court had held that the government needed a search warrant to use thermal imaging technology to see inside a home. Kyllo v. United States, 533 U.S. 27, 33-36 (2001).

But in this case, the court of appeals disagreed. First, it noted a split of opinion among the federal courts regarding whether “reason to believe” meant probable cause or something less than that. See, e.g., United States v. Gorman, 314 F. 3d 1105, 1112 & n.6 (9th Cir. 2002). Then it concluded that, even if the deputies needed probable cause to believe the defendant was inside the home before they entered it, they had it. First, they knew he had recently opened a utility account for the home and was the primary account holder. Second, they knew he hadn’t reported any income from employment recently, which suggested he’d be home in the morning on a weekday. Third, they knew he was on the lam and thus more likely to hole up at home anyway than gallivant about town. And fourth, they noticed that the home’s electric meter was spinning faster than usual, which suggested someone was inside using the electricity. Under these circumstances, the court found enough reason under either standard to believe defendant was home at the time.

Still, the court couldn’t help commenting on the new technology:

“It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions…. We have little doubt that the radar device deployed here will soon generate many questions for this court and others ….”

USDOJ Ends Certain, Controversial Property Seizures. Sort of.

Last week, U.S. Attorney General Eric Holder ordered an end to a controversial, civil-asset-forfeiture practice known as federally-adopted forfeiture, or “federal adoption” for short. It’s called that because it applies to cases in which state or local agencies seize money or property under state law but then offer the property to the federal government to be forfeited under federal law because they can’t or don’t want to proceed under state law for some reason. (More on that below.) Under federal adoption, state or local agencies receive eighty percent of the value of the forfeiture back in their coffers while the federal government keeps the rest.

The Attorney General’s order now prohibits that practice for all types of property but five: firearms; explosives; ammunition; property associated with child pornography; and any other property that directly relates to public-safety concerns and whose adoption is approved by the Assistant Attorney General for the Criminal Division.

In all other cases, state and local agencies will need to pursue forfeiture of the money or property under their state’s laws.

Why might that matter? In some states, the law requires a higher standard of proof before the police can take and keep your property without even charging you with a crime (let alone convicting you of it). Some states also require the proceeds of forfeiture to go into the state’s general fund, not into the coffers of the very agency that seized it.

Why might it not matter? For starters, some states have laxer forfeiture laws than the federal government. Also, the Attorney General’s order leaves the federal program intact and available for state or local seizures that involve any hint of federal participation. That includes seizures made by state or local agencies in a joint federal-state task force, a joint federal-state investigation, an ongoing federal investigation, or even, apparently, a brand-new federal investigation if federal officials simply go to federal court and get a federal warrant to take custody of the property. So workarounds abound.

For more insights on the value and limits of the new policy, see here, here, and here. For the Justice Department’s press release, see here, and for the two-page order itself, see here.

Are We Militarizing Our Police Departments, And If So, Why?

It’s a fair question to ask because the trend appears to be real and the stories about it (and its excesses) abundant. They include things like battledress uniforms; military-grade weapons; armored vehicles; battering rams; paramilitary jargon and training; SWAT teams to serve every search warrant; and heavy-handed raids that terrorize people suspected of petty crimes or even regulatory offenses. And they seem to be occurring around the country in places like Texas, Wisconsin, IowaAlabama, Mississippi, and elsewhere, including here in Orange County.

These stories remind me of a memory from a few years ago. Some law-school buddies and I were walking around downtown Long Beach, and as we stood at an intersection waiting to enter the crosswalk, we saw a truck make a left turn in front of us and drive down the street in the direction we were heading. It wasn’t a Humvee, but it was a military vehicle with camouflage colors, and as it drove away from us, we could see a soldier sitting in the back. He was decked out in combat gear, his legs were dangling off the bed, and he was cradling a large assault rifle in his arms.

It was an intimidating sight to see in broad daylight on a busy street in Long Beach. It’s not that we had anything to fear, but it made you feel like you were somewhere else, not the United States of today, nor hopefully, the United States of tomorrow.

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