Sentencing

The Canadian House of Commons today passed the Conservative government of Prime Minister Steven Harper' C-15 crime bill, which will institute mandatory minimum sentencing for some marijuana and other drug offenses. The vote, in which after dilly-dallying for days, the opposition Liberals joined in, came despite hearings in which no witnesses favored such a tough on crime approach north of the border. It's not a done deal yet. The bill must still be approved by the Canadian Senate, which issued a report several years ago calling for the government to head in the opposite directoin. But the Senate, which is appointed, is not known for bucking the government and the House of Commons. That the Liberals buckled for fear of being "soft on crime" and supported the Conservatives in this giant step backward is disappointing but not surprising. Oh, Canada! Once we looked to you for a progressive example on drug policy. I will be writing about all this for the Chronicle later this week, as well as focusing on our other border with a feature article on the Obama administration's new initiative to thwart the Mexican so-called drug cartels.

This Cleveland Plain-Dealer story just completely blows the lid off the inherent racism of the war on drugs. Reporter Bob Paynter pulled out all the stops, digging through court records to demonstrate how people of color receive harsher punishments than white defendants for the same drug crimes.

This is superb reporting, a rare find when it comes to criminal justice issues. Reporters across the nation should repeat Paynter’s methodology. Racial disparities are endemic to the war on drugs and you will find them everywhere. All you have to do is look.

George Michael’s latest drug arrest has reduced Ross Clark at The Times Online to a sputtering mess. In an embarrassing editorial entitled It's just as wrong to use drugs as it is to sell them, Clark compares drug use to child pornography and calls for casual users to serve long sentences:

With stolen goods, illegal weapons and child pornography, the law is clear: the user is as guilty as the supplier. The police didn't let Gary Glitter off with a little rap on the knuckles and the rest of us didn't shake our heads and say: “Poor Gary, how sad that he has fallen victim to these evil porn dealers.”

He was prosecuted, quite rightly, on the basis that those who provide the market for child porn are implicated in its production. So why then do such different attitudes persist in the case of drugs? If it is wrong to produce and trade drugs, then it is equally wrong to use them.

Clark goes on explain that drug addiction doesn’t happen to intelligent people:

…Among drug users and drug peddlers alike, there are, of course, sometimes mitigating circumstances. If you have been brought up by drug addicts, beaten and abused, it shouldn't come as too much of a surprise if you grow up with a somewhat confused sense of right and wrong.

But none of this applies to George Michael, who is intelligent enough to know that taking crack is not just an issue of personal liberty: there is a clear association between use of the drug and propensity to commit violent crime. If caught with illegal drugs he should be treated to no less a punishment than if he had smuggled them into the country and sold them on the streets.

Dude, chill out. No one wants to spend $250,000 imprisoning a guy for $20 worth of dope. I’m sure you had fun writing this, but do you actually agree with your own idea? Did you know that it costs money to keep people in jail? If you hate drug users so much, do you really want to pay for all their food and clothes and healthcare for 10 years every time we catch one? No you don’t, so shut up before we lock George Michael in your pantry and make you take care him forever.

Pete Guither points out that the Republican Party’s newly released platform pledges to continue the disastrous and increasingly unpopular war on drugs:

Continuing the Fight against Illegal Drugs

The human toll of drug addiction and abuse hits all segments of American society. It is an international problem as well, with most of the narcotics in this country coming from beyond our borders. We will continue the fight against producers, traffickers, and distributors of illegal substances through the collaboration of state, federal, and local law enforcement.

In 2008, I’m beginning to doubt that anyone is going to win any votes with this kind of language. Given the risk of rubbing the libertarian crowd the wrong way, it wouldn’t have surprised me to see this rhetoric left out altogether. Of course, that would have been a conspicuous omission, I suppose, and you can bet that we’d have more than a few words to say about that.

On the plus side, Pete noticed that the section called "Locking Up Criminals" omits drug crimes from the list of offenses for which the Republicans support mandatory minimum sentencing:

We support mandatory sentencing provisions for gang conspiracy crimes, violent or sexual offenses against children, rape, and assaults resulting in serious bodily injury.

That’s really a rather positive sign, indicating that we may be moving towards a bipartisan consensus that our drug laws have gone too far.

I’m also tempted to theorize that Obama’s decision to bring Biden onto the ticket may have been a contributing factor here. Months ago, Dick Morris editorialized in favor of attacking Obama on sentencing reform, arguing that by supporting revised crack sentencing guidelines, Obama wants to let thousands of crack dealers out of jail. It’s cynical and ruthless ploy that becomes considerably harder to pull off with Biden on the ticket. Given his central role in pushing through the original sentencing disparity, and his recent evidence-based reversal, Biden has all the credibility to blow any "soft on crack" attacks back to the '80's where they belong. I’m no fan of Biden’s drug war record, but there’s an interesting dynamic here, which I'll concede to those who've argued that Biden's awful history could end up providing cover for reform.

Which brings us to the obvious question: if the democrats don’t support mandatory minimums for drug offenses, and the republicans don’t support mandatory minimums for drug offenses, who does?

(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Via John Tierney at the New York Times, posted late last night... Judge Leonie Brinkema sentenced pain physician Dr. William Hurwitz to 57 months, more than pain treatment advocates were hoping for but considerably less than the 25 years handed down in the first trial by Judge Wexler. With time served, he could be out in 17 months. One paragraph in particular from Tierney's blog post encapsulates much of the backwardness inherent in the federal sentencing system, backwardness that affects many much more run-of-the-mill cases as well:

While there was no evidence that Dr. Hurwitz was profiting from the resale of his prescriptions -- and the jurors I interviewed said they didn’t think he intended the drugs to be resold -- he will still spend more time in prison than almost all the patients who admitting lying to him and reselling the drugs. Thanks to the deals they made to cooperate with prosecutors, seven of the nine patients got sentences ranging from 10 to 39 months. Only two got longer sentences than 57 months -- and one of them, who got 72 months, was also guilty of armed robbery and arson.

The other thing that is really troubling about this case is that jurors admitted to Tierney (previously) that they were not clear on what the law says about whether a doctor who screws up and prescribes to the wrong people, but isn't intentionally diverting drugs to the black market, should be held criminally responsible. But that is precisely the point of law on which the verdicts turned. If jurors don't understand the law they are judging, what is the justification for keeping the conviction and imprisoning someone for it? Despite the praise that has been given to Brinkema by Tierney and others for her handling of this case -- which admittedly was far better than other judges have done -- at the end of the day I have to say that I think she failed to do proper justice. I repeat, if the jurors admit that they did not understand the key point of law before them, I see no reasonable way for the verdicts to be considered legitimate, because the process itself is simply unsound. I could see an argument (theoretically) for having a third trial, but Dr. Hurwitz should be at home tonight with his family, and it's a crime that he's not -- not only for his sake, but for all the pain patients who effectively are being tortured by denial of pain medication because doctors don't want to take the risk of getting sent to prison. Lastly on this theme, think about the fact that the first set of convictions were invalidated, and this second set for the aforementioned reasons clearly should have been. That's an extraordinarily poor track record. A criminal justice system that imprisons people even when jurors admit they didn't know what they were doing is a system that is fundamentally corroded and has lost its way. Don't be proud of yourselves, feds! Despite all of the foregoing, I also have to say that I am relieved. 17 months is a long time to spend in prison, even if one hasn't already spent some years there already, but it could be much, much worse. Judge Brinkema could have given him the same 25 years, or life -- or 10 years, or 12 or 15. The trial also had a bright spot in that Brinkema saw through the misrepresentation about dosages that prosecutors had attempted:

Brinkema said she had read news accounts of the first trial and had seen some of the massive prescriptions Hurwitz had given out, including one patient who was given 1,600 pills a day. "The amount of drugs Dr. Hurwitz prescribed struck me as absolutely crazy," the judge said. But after hearing testimony from both sides, "I totally turned around on that issue," Brinkema said. "The mere prescription of huge quantities of opioids doesn’t mean anything."

In fact, there are known pain treatment cases in which the dosages were literally four times greater than the largest dosage prescribed by Hurwitz in the cases at stake (as I pointed out in a letter to Judge Wexler before the first sentencing, though obviously to no avail). Now lawyers in other pain cases (current and future) can read Judge Brinkema's comments to judges and jurors to explain why the apparently large doses may have been appropriate. The problem hasn't been a lack of experts willing to say that in trials; the problem has been that for some reason it just seems to wash over people in the face of the large number of pills. I think that having a quote like that from a federal judge will help to break through. I'm not a physician, and I'm not in a position to judge whether or not Dr. Hurwitz practiced good medicine in every case. But I'm completely confident that he did not engage any drug-dealing conspiracy. Perhaps the fact that I've met him several times in the past biases my view. But I've also met many of his former patients -- some of them I know well -- and it's a provable fact that he helped many people whom others doctors wouldn't help and who desperately needed the help, and that he gave them the benefit of thoughtful attention. A lot of these people were left in the lurch when the authorities moved against him, causing at least one suicide and arguably a few of them. Hopefully this outcome, while highly imperfect, has enough good points in it to help move things in the right direction; time will tell. You can keep with all of our pain reporting in our topical archive -- RSS is available here -- email us if you'd like to run our pain feed (or any other feed we offer) on your web site.

Your itinerant Drug War Chronicle has been bouncing around North America for the last few years, spending significant amounts of time in Washington state, British Columbia, Mexico, Northern California, and my home state, South Dakota. The traveling is nice, but I’ve felt politically homeless, as if my presence anywhere were too fleeting for me to be able to do local or state-level politics, and that’s a frustration. So, as much as I would rather be elsewhere, I’m thinking I need to hunker down here in Dakotaland and try to get something done. It is not friendly territory. South Dakota is the only state where voters rejected an initiative to allow the medicinal use of marijuana. Although it was a close vote, 52% to 48%, it was still a loss. Medical marijuana bills (introduced by an acquaintance of mine) early in the decade went nowhere. The state has one of the fastest growing prison populations right now, thanks largely to its approach to methamphetamine use. Marijuana possession is routinely punished by $500 fines, and there is a good chance of jail time, too. (In fact, you may be better off being convicted of drunk driving, if my local court records are any indication.) And, most hideously of all, South Dakota is the only state I know of that has an “internal possession” law. That means when the police arrest you with a joint, they make you submit to a urine test, then charge you with an additional offense if you test positive. South Dakota judges also routinely sign drug search warrants that include forced drug tests. I know one gentleman currently serving a five-year prison sentence for “internal possession” of methamphetamine metabolites, and no, it wasn’t a plea bargain. That was the only charge they had. South Dakota’s drug reform community (which can probably be counted on the fingers of one hand) seems beaten down, but I think I’m going to reach out and see if I can’t get anyone interested in a four-pronged drug reform legislative package: Hemp. Our neighbors in North Dakota have passed a bill allowing farmers to grow hemp and are currently suing the DEA to force it out of the way. South Dakota farmers would like to make profits, too. Medical marijuana. Yeah, we lost a close one last year, and it’s never been able to get any traction in the legislature. But I think we should make them deal with it again. Our neighbors in Montana seem to be surviving medical marijuana. Marijuana decriminalization. Does South Dakota really think pot possession is more serious than drunk driving? Does the legislature understand the lifelong impact of pot conviction on its constituents? Our neighbors in Nebraska decriminalized pot back in the 1970s, and the cornfields are still standing. Repeal of the internal possession laws. Criminalizing someone for the content of his blood or urine is just wrong. Winning any of these will be an uphill battle, and perhaps even linking hemp to broader drug reform issues would spell its doom here. But I think it’s every good activist’s responsibility to do what he can to slow down the drug war juggernaut, so I’m going to give it a shot. What are you doing in your state?

Maryland's governor, Martin O'Malley, is set to make a decision regarding the drug sentencing reform bill passed by the state's General Assembly by Thursday -- he initially supported it but is now threatening a veto -- and press coverage has continued. Editorials criticizing his veto threat have run in the Baltimore Sun and the Washington Post. (I'm having trouble finding a link for the Post article -- please post one here if you have it.) Some quotes from the two pieces, first the Post:

"Its veto would raise the question of whether Mr. O'Malley is more interested in political posturing than in constructive reform of the state's criminal justice system."

and the Sun:

The Sun editorial read: "Mr. O'Malley shouldn't veto the bill... the solution is not to retreat from a modest sentencing change, it's to allocate more money for drug treatment."

(This action alert is going out to our Maryland subscribers in the AM. As a Marylander -- I live in Takoma Park now -- I'm officially upset at the governor. I knew he'd show himself to be a "fake" liberal when push came to shove on this issue. - Dave)

Last month a modest but important sentencing reform bill -- HB 992, which restores parole eligibility for second-time drug offenders -- was passed by the Maryland General Assembly. At the time Gov. O'Malley had indicated that he supported the bill. But now he has flip-flopped and is saying he may veto it.

Please call O'Malley's office and demand he stop playing politics with people's lives and sign HB 992. Mandatory minimums are a terrible injustice and are costly and ineffective public policy -- HB 922 is simply a no-brainer. CALL (800) 811-8336, OR FAX O'MALLEY A LETTER AT (410) 974-3275. (The address to use on your letter if writing is: The Honorable Martin O'Malley, State House, Annapolis, Maryland 21401-1925 -- be sure to use fax, though, there isn't enough time to rely on the US mail.) PLEASE FORWARD THIS ALERT TO YOUR FRIENDS IN MARYLAND TOO!!!

The organization Stop the Drug War (DRCNet) has a form set up online to make it easy to e-mail the governor -- I hope you will use this method too. Phone calls and individual faxed letters are the best, though, so if you can do one of those I hope you will. Please send me an e-mail, and send one to [email protected] to let me and DRCNet know you've taken action. Following is some background on HB 992, from the Justice Policy Institute:

When enacted, HB 992 would operate as follows:

• HB 992 does not apply to violent offenders. HB 992 does not apply to third or fourth time offenders. HB 992 does not apply to volume dealers or drug kingpins.
• A defendant is convicted of possession of intent to distribute a controlled dangerous substance or distribution of a controlled dangerous substance. The defendant is a second-time offender and is subject to a 10-year mandatory sentence.
• At sentencing, the judge will have available a presentence investigation report (PSI), prepared by Parole and Probation, that details the defendant's complete criminal history (arrests, convictions, warrants, etc.), family history, drug addiction and treatment (or lack thereof) history, and a recommended sentence range based on the defendant's offender score and offense. The judge will hear from defense counsel and the state's attorney concerning a sentence.
• The defendant will be sentenced to 10 years of incarceration. If the defendant is not also guilty of a violent offense, the judge, after a full appraisal of the defendant and listening to argument and recommendations of the state's attorney and defense counsel, MAY sentence to 10 years with the POSSIBILITY of parole.
• The defendant is confined within the Department of Corrections and waits a minimum of two and a half years for a parole hearing.
• The parole commission then determines, based on the defendant's updated presentence investigation report (PSI), offense, offender score, impact statements, a letter from the state's attorney that originally prosecuted the case, and the defendant's "base file" -- i.e., complete institutional record prepared by a case manager detailing tickets, classes, work history, etc., and whether the inmate has an exit plan -- i.e. a job and place to live -- whether to parole the inmate.
• If the inmate is paroled (which is unlikely on the first attempt) and complies with the conditions of his or her parole, the state saves approximately $100,000 and public safety is not impacted.
• If the inmate is paroled (again, unlikely on the first attempt), the inmate is subject to supervised probation and, if the inmate fails to comply with his or her parole conditions, faces serving the entire balance of the 10-year sentence.

While HB 992 by no means does all we would want, it is a beginning. I hope you will take action -- thanks for helping us help Maryland's nonviolent drug offenders this year.

Mark Kleiman is one of a relatively small number of US academics who thinks and writes about drug policy. I don't always agree with him—especially his proposals for licensing drug users, higher alcohol taxes, and "coerced abstinence"—but his work is thoughtful, and, after listening to what passes for drug policy discourse among the political class, a veritable breath of fresh air. Kleiman is at it again this week, with a lengthy article, "Dopey, Boozy, Smoky—And Stupid," in the magazine The American Interest. After noting that 35 years into the war on drugs, the country still has a massive drug problem, as well as a massive police and prison apparatus aimed at drug users and sellers, Kleiman observes that no policy is going to eradicate drug use and what is needed is "radical reform." But real reform requires a better understanding of drugs and drug use, and that is where reality confronts mythology. As Kleiman notes, "most drug use is harmless," but drug abuse is not. That's quite different from "just say no." Similarly, he goes up against another drug policy mantra, this one popular with some reformers, that "drug abuse is a chronic, relapsing condition." That is true for only a minority of a minority of drug users, he correctly notes. After discussing some of the basics, Kleiman gets to the fun and thought-provoking part of his article—general policy recommendations:

These facts having now been set out, five principles might reasonably guide our policy choices. First, the overarching goal of policy should be to minimize the damage done to drug users and to others from the risks of the drugs themselves (toxicity, intoxicated behavior and addiction) and from control measures and efforts to evade them. That implies a second principle: No harm, no foul. Mere use of an abusable drug does not constitute a problem demanding public intervention. “Drug users” are not the enemy, and a achieving a “drug-free society” is not only impossible but unnecessary to achieve the purposes for which the drug laws were enacted. Third, one size does not fit all: Drugs, users, markets and dealers all differ, and policies need to be as differentiated as the situations they address. Fourth, all drug control policies, including enforcement, should be subjected to cost-benefit tests: We should act only when we can do more good than harm, not merely to express our righteousness. Since lawbreakers and their families are human beings, their suffering counts, too: Arrests and prison terms are costs, not benefits, of policy. Policymakers should learn from their mistakes and abandon unsuccessful efforts, which means that organizational learning must be built into organizational design. In drug policy as in most other policy arenas, feedback is the breakfast of champions. Fifth, in discussing programmatic innovations we should focus on programs that can be scaled up sufficiently to put a substantial dent in major problems. With drug abusers numbered in the millions, programs that affect only thousands are barely worth thinking about unless they show growth potential.

Hmmm, sounds pretty reasonable. Now, here is where Kleiman gets creative. Below are his general policy recommendations. I will leave the comments for others, but there is plenty to chew on here:

Last month, the Chronicle featured the story of Tyrone Brown, the Texas black man doing life in prison for testing positive for marijuana while on probation for participating in a penny-ante armed robbery back in 1990. He's been languishing in prison ever since, but in the past year, a movement to free Tyrone Brown has really taken off, thanks to a pair of ABC News 20-20 reports that featured his sad story.