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%)

White-Collar to Blue-Collar in One Day

Last week, the U.S. Supreme Court issued two notable decisions on the same day.

One was a civil white-collar case, the other a criminal drug-trafficking case, and in both cases, the Court reversed the lower-court ruling on appeal.

In the civil case, the Court imposed a five-year statute of limitations on SEC cases that seek to disgorge profits. That’s the same period that applies in cases to enforce a fine, penalty, or forfeiture. Although disgorgement of profits is traditionally a form of restitution that’s measured by a defendant’s wrongful gain, the Court ruled that it’s a penalty in SEC cases for a couple reasons. First, the agency uses it to deter and punish defendants as much as to compensate victims. Sometimes, the money goes to Uncle Sam, and sometimes, the only victim is the public at large. Second, the agency often disgorges more than defendants have gained, leaving them worse off than before they broke the law. That may be the point, but that makes it a penalty.

In a footnote, the Court even seemed to call into question whether courts could order disgorgement at all. That’s something they’ve been doing since the 1970s, so it’s a big deal. For more in-depth analysis of this decision, see here.

In the criminal case, the Court reined in the government’s forfeiture power. Forfeiture allows the government to seize money or property that’s derived from a crime. But the law limits this to what someone actually and personally receives or obtains. That means you can’t be responsible for amounts obtained by someone else. So the hypothetical college student who gets $500 per month to drop off a few packages isn’t on the hook for the whole multimillion-dollar drug enterprise.

Here, two brothers worked in a hardware store together. One of them owned the store, and the other was a salaried employee. The two were charged with selling large amounts of a product they knew or had reason to know was being used to make meth. In three years, the store grossed about $400,000 from selling the stuff and netted $270,000.

The government wanted the $270,000 in profits. The owner agreed to forfeit $200,000 of it when he pleaded guilty, but the employee went to trial. He was acquitted of three counts, convicted of eleven, and sentenced to sixty months in prison. Then the government went after him for the remaining $70,000.

Although the government agreed that the employee had no ownership interest in the store and didn’t personally benefit from the illicit sales, it argued that, in a conspiracy, everyone is responsible for the full proceeds of the conspiracy. And it won that argument on appeal.

But the Supreme Court rejected that and reversed.

 

The New DOJ Policy on Charging Decisions

Two weeks ago, the new U.S. Attorney General announced a new policy for charging and sentencing in criminal cases. Although the policy targets drug cases in particular, it applies to all federal prosecutions.

You can break it down into three parts.

First, prosecutors should file the “most serious, readily-provable” charges in each case. The most serious charges are those that carry the stiffest sentence, including any mandatory-minimum sentence. To deviate from this policy, prosecutors must get approval from a supervisor, document their reasons for it, and be able to point to “unusual facts.”

Second, in most cases, prosecutors should seek a standard sentence under federal sentencing guidelines. If they want to deviate from the guideline sentence, they must get supervisory approval and document their reasons in the file.

Third, prosecutors should discard inconsistent policies of the prior administration. Under prior policy, prosecutors still charged the most serious offense that was consistent with a defendant’s conduct and likely to yield a solid conviction. But they were also encouraged to evaluate cases individually to decide which charges to file, and they were told to seek sentences that were fair and proportional under all the circumstances.

In particular, prosecutors now must ignore two prior policies that tried to reduce harsh sentences in low-level, nonviolent drug cases. Under one policy, they were not to charge a specific drug quantity if it triggered a mandatory-minimum sentence, and they were to avoid charging prior drug convictions that doubled the minimum sentence or put someone in prison for life. We wrote about this before here. Under the other policy, they could not threaten to charge such priors just to force you to plead guilty. I guess that’s fair game now.

The new policy has sparked criticism across the spectrum. Lawmakers from both parties have railed against it. One former U.S. Attorney decried its “stunning lack of faith” in line prosecutors. A coalition of state and local prosecutors has published an open letter against it. And the National Association of Criminal Defense Lawyers had this reaction:

“This Attorney General has taken away the discretion of professional prosecutors to determine what sentence serves justice in any given case. Instead, prosecutors are now required in every case mindlessly to seek the maximum possible penalty…. This policy will lock up non-violent offenders with little or no criminal history, waste untold millions of dollars, devastate families and whole communities, and yet not make us any safer.”

New California Criminal Laws: Part Deux

To conclude our series on new criminal laws, here are two more notable ones.

You have more protection against abusive asset forfeiture. This is Senate Bill 443. It amended the Health and Safety Code to curb law enforcement’s ability to take and keep your property without convicting you of a crime. For more background see here.

Under the new law, the authorities must convict you of a crime in order to take your cash if it’s less than $40,000. The prior threshold was $25,000. As before, they also must prove up their forfeiture case against the money beyond a reasonable doubt. For cash of $40,000 or more, they still don’t need to convict you of a crime, but as before, they must prove their forfeiture case by clear and convincing evidence.

Furthermore, the authorities may no longer bypass state law by asking federal agents to adopt the forfeiture under federal law. Even in cases of a joint task force or investigation, they may not share in the proceeds of a federal forfeiture if state law would’ve required a conviction but there wasn’t one.

You’ve got a much better shot at getting a new trial based on newly-discovered evidence. This is Senate Bill 1134. It amended the Penal Code to include a new standard for writs of habeas corpus based on new evidence. Before, you would only get a new trial if your new evidence pointed “unerringly to innocence” and completely undermined the state’s case. That was a nearly impossible standard to meet.

Now, you can get a new trial if you present new evidence that’s “credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.” Much better.

You Won’t Ever Die From Boredom In a Police Raid

That’s the nice thing about it.

But the same can’t be said for being rash or reckless, which is how some police departments are prone to execute their warrants. They may use SWAT teams as a default option for every search or arrest, and they may go in like gangbusters if they do.

When they do, everyone makes more mistakes, and everyone pays a price. They may hit the wrong address and terrorize an innocent family. Or they may hit the right address but kill someone for no good reason.

Here’s an alternative then.

It comes from this essay by a veteran police officer who served sixteen years on a SWAT team. You could say he’s served a lot of warrants.

His very first search was all smash and grab, and it gave him a rush.

But over time, he says, his team gravitated toward a different default: surround the place and call people out. They realized it worked better. Everyone made better decisions.

What are the downsides? Fewer adrenaline rushes. Fewer cool stories for friends and family. More evidence or contraband flushed down a toilet.

The upsides? Lower risks of harm for everyone. More compliance from people on the receiving end. More people on all sides going home to their families at the end of the day.

Police raids still have their place, the author says. Sometimes, it just isn’t safe for cops to stand around and wait. Or they may be hitting multiple locations at the same time. Or they may lose valuable evidence if they don’t go in fast.

Other times, though, they go in hard and fast to save money on overtime pay or to avoid rush hour later that day, and those aren’t good reasons.

So here’s to slower, safer, smarter law enforcement. May boredom reign.

California’s Next Gold Rush Is Green

Last week, California legalized recreational marijuana. So did Maine, Nevada, and Massachusetts, and four other states passed medical-marijuana laws: Arkansas, Florida, Montana, and North Dakota.

It marked the end of prohibition as we know it, which didn’t work for alcohol and doesn’t work for pot. Too many millions of people enjoy it responsibly or know others who do, and it’s safer than alcohol or tobacco. As a much-beloved sportscaster used to say, the game’s now in the refrigerator; the door’s closed, the light’s out, the eggs are cooling, the butter’s getting hard, and the Jell-O is a-jigglin’. Hopefully, Uncle Sam does the right thing, too.

Through Proposition 64, California voters enacted the Control, Regulate, and Tax Adult Use of Marijuana Act of 2016. It’s called the Adult Use of Marijuana Act for short. For a deep dive on the issues, see the state’s official voter guide to the election. It’s a big file, but a summary of Prop 64 starts on page 90, and the full text follows on page 178.

What do you need to know right now? These six things.

It legalized recreational marijuana for adults age 21 or older. You may now grow up to six plants on your property, and you may buy or possess up to 28.5 grams of cannabis, which is an ounce, or eight grams of concentrated cannabis.

It taxes the sale and cultivation of marijuana. It imposes an excise tax of 15% on retailers, on top of existing state and local sales taxes, as well as a cultivation tax on growers of $9.25 per ounce of flower and $2.75 per ounce of leaf. It will generate billions of dollars in tax revenue in the coming years, and it will save millions of dollars in costs to law enforcement.

It imposes standards on the testing, labeling, packaging, and marketing of marijuana. It prohibits marketing to minors, and it bars shops from operating within 600 feet of a school, daycare center, or youth center unless the local government approves. It also bars them from selling alcohol or tobacco.

It continues to punish those who use, grow, or sell outside the rules. It’s a misdemeanor to have more than 28.5 grams, grow more than six plants, or sell without a license. It’s punishable by up to six months in county jail, a $500 fine, or both, and you’re subject to large civil monetary penalties for each day you’re in business. Or you could face a felony based on your criminal history, your selling to or employing underage people, or the environmental impact of your unlicensed grow. Separate penalties continue to apply to minors and people age 18 to 21. Finally, you can’t use pot on the road, in a public place (except for shops that allow it), or anywhere that you can’t use tobacco.

It allows people to petition to clear their records. If you’re currently serving or have ever served a sentence for an eligible marijuana offense, you can petition the court to reduce your conviction and sentence or dismiss your case entirely. The court will presume that you’re entitled to this relief unless prosecutors prove by clear and convincing evidence that you’re not. If they can’t, the court will grant your petition unless it finds that doing so would endanger public safety. Many counties have already prepared to process these petitions.

The state will tax, license, and regulate marijuana businesses, and it will issue its first licenses by January 1, 2018. Cities and counties may further tax or regulate the industry or just ban it outright (but not ban its transportation through their jurisdiction). The main state agencies are as follows:

  • The Bureau of Marijuana Control (formerly the Bureau of Medical Cannabis Regulation): to license and regulate retailers, distributors, and testing facilities
  • The Department of Food and Agriculture: to license and regulate growers
  • The Department of Public Health: to license and regulate edibles
  • The Department of Fish and Wildlife: to regulate the environmental impacts of growing
  • The State Water Resources Control Board: to regulate the environmental impacts of growing on water quality
  • The Department of Pesticide Regulation: to regulate the use of pesticides in growing
  • The Marijuana Control Appeals Panel: to hear appeals from people and businesses affected by an agency’s decision

Federal Court Puts a Stop to Medical-Pot Prosecutions

In a resounding decision last week, the country’s largest federal court of appeals forbade the Justice Department from prosecuting people who comply fully with their states’ medical-marijuana laws. The court’s decision consolidated ten separate appeals from cases in Washington and California. The decision also applies in Oregon, Alaska, Montana, Nevada, Hawaii, and Arizona. It doesn’t apply in Idaho because Idaho has no such law.

The defendants’ appeals were based on a congressional spending bill that we wrote about eighteen months ago. That bill blocked the Justice Department from using any funding to interfere with medical-pot laws. It has since been extended through September 2016.

Based on the bill, each of the defendants had moved to dismiss their cases or restrain the government from further prosecuting them. But the trials courts denied them.

On appeal, the court agreed that Congress had spoken.

Thus the executive branch could not spend funds to prosecute the defendants if their conduct were permitted by their states’ laws and they complied fully with those laws. The executive could not spend funds on such cases because doing so would violate the Appropriations Clause of the Constitution, which commands that no money be paid out of the Treasury except by act of Congress. If the executive were spending money without authorization, it would violate the separation of powers. The defendants had standing to try to prevent it from doing so, and the courts were required to intervene.

Therefore, the court sent the defendants’ cases back to the trial courts with instructions that if the Justice Department insisted on prosecuting them, they were entitled to evidentiary hearings to determine whether they had complied with state law.

The court also warned, however, that “Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”

California Medical Association Says Legalize Marijuana

On February 1, the California Medical Association endorsed the Control, Regulate, and Tax Adult Use of Marijuana Act. Here’s the story from the Sacramento Bee, which features a short video running down the big questions about the ballot initiative. And here’s the press release from the CMA, which is the largest representative body of physicians in the state.

Meanwhile, the Obama administration has signaled that it will not revisit federal law in its last year unless Congress does.

All while people continue to suffer at the hands of prohibition.

Here are a couple of stories about a Missouri man who is 21 years into a life-without-parole sentence for nonviolent marijuana offenses. He will die in prison if the governor doesn’t grant him clemency.

Here’s one from San Francisco, of all places, where police took a guy down over $20 of pot because they were collecting overtime pay for their sting operation. They charged the guy with felony possession for sale, but a jury acquitted him in three hours flat.

Here’s another about a military veteran and father of two from Virginia who was deported for a nonviolent marijuana offense.

And here’s one about a Florida man who was mistakenly shot to death when a SWAT team raided his house over $200 of pot.

They’re a dime a dozen: casualties of a counter-productive policy that persists in 2016.

New California Criminal Laws: Part Deux

To conclude our two-part series on the state’s new criminal laws, here are three more important ones that went into effect on January 1, 2016.

Both prosecutors and defense attorneys must account for the immigration consequences of a plea deal. This is Assembly Bill 1343. It amended the Penal Code to reflect that defense lawyers must advise noncitizens accurately about the immigration consequences of a proposed guilty plea, and they must ethically defend against such consequences to the extent they can. This is not new, but the statute confirms state and federal case law to that effect. What is new, however, is that prosecutors must also consider such immigration consequences as a factor in their plea-bargaining efforts to reach a just outcome. See Pen. Code §§ 1016.2 & 1016.3.

It’s not a felony to transport marijuana, phencyclidine, or mushrooms unless you’re doing it for sale. This is Assembly Bill 730. It amended the Health and Safety Code to bring the treatment of these drugs in line with that of cocaine, heroin, and others. Two years ago, the state amended its drug-trafficking laws to preclude felony charges for just transporting most drugs unless you were actually trafficking, too—that is, transporting for sale; but the bill left out marijuana, phencyclidine, and psilocybin mushrooms. This bill fixes that. See Health & Safety Code §§ 11360, 11379.5, & 11391.

The police (but not your neighbor) may continue to use pen registers and trap-and-trace devices to investigate you. This is Assembly Bill 929. It amended the Penal Code to provide for police to apply for pen registers and trap-and-trace devices. What are these? Well, pen registers capture and record all the numbers of the phones or devices that you call or send messages to (but not the content of your communications), while trap-and-trace devices capture and record all the numbers of the phones or devices that call or send messages to you (but not the content). They’re often used in tandem, and they’ve been authorized by case law for a long time, but no California statute codified their use until now.

To use them, the police must apply for a court order, certify that the information is relevant to an ongoing criminal investigation, and show probable cause to believe the information will lead to evidence of the crime. If granted, the court order is good for sixty days, and it may be renewed for another sixty days. But if someone installs or uses such devices without a court order, it’s a crime. It may be charged as a felony or a misdemeanor, and it’s punishable by a fine of up to $2,500, imprisonment in the county jail for up to three years, or both. See Pen. Code §§ 638.50, 638.51, 638.52, & 638.53.

A Doctor’s Plea for Compassionate Release

Speaking of mercy, clemency, and compassion—here is a moving, short essay about a doctor and her patient.

The author is the doctor; she specializes in end-of-life care, and she seems to be an exceptionally capable and compassionate person. Two years ago, she was one of five finalists for a national nonprofit’s award to a healthcare professional who demonstrates extraordinary compassion in caring for patients and families.

So she’s one of our angels roaming the earth, and she writes eloquently in favor of the compassionate release of harmless, elderly or infirm people from prison.

People just like her patient.

How many of them do we believe deserve to die this way?

I reckon very few, indeed.

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