Mandatory Minimum Sentences
Federal Appellate Judge Andre Davis has penned an op-ed about mandatory minimum sentences. Here’s an excerpt:
As a judge on the U.S. Court of Appeals for the Fourth Circuit, I learn of many personal narratives. Tony Gregg’s bears retelling.
Mr. Gregg was a user, a seller, a “snitch” for the FBI. His early life was marked by abuse and instability, suicide attempts, jails and prison stays. As a drug user, Mr. Gregg resorted to selling crack cocaine — not kilos, but several grams at a time out of a hotel room in a run-down section of Richmond, Va.
Not unexpectedly, he was arrested and convicted. A district judge sentenced Mr. Gregg to the mandatory term of life imprisonment, required by statute, at the discretion of the prosecutor, for a third conviction of a felony drug offense.
When Mr. Gregg’s case came before me and my colleagues on appeal, there was nothing we could do but uphold the sentence of life in prison. The appellate court, like the disapproving trial court, found its hands were tied.
I do not believe Mr. Gregg deserves life in prison — the kind of sentence often imposed on convicted murderers — but I am handicapped by mandatory minimum sentencing guidelines, set by the Anti-Drug Abuse Act of 1986.
And Mr. Gregg’s is far from the only story that underscores the kind of handcuffing by mandatory minimums that U.S. judges habitually face.
After 25 years of watching countless Tony Greggs serve out impossibly long sentences for transgressions that would be better served by drug treatment and social safety nets, I say with certainty that mandatory minimums are unfair and unjust. They cost taxpayers too much money and make very little sense.
For more information, vist the FAMM web site.
Drug War Update
When a war is not going well, one response is to escalate. There has been a lot of escalation in the drug war. Here are two recent examples:
1. Federal agent loses his job for questioning the wisdom of the drug war. Some government officials do not like the fact that the group “Law Enforcement Against Prohibition” (LEAP) has a growing membership.
2. Police agents tell judge in a warrant application that DVDs that educate citizens about their constitutional rights make certain organizations suspicious. Really. Since the film in question, “10 Rules for Dealing with the Police” premiered at Cato, maybe undercover officers are now attending our events. Neill Franklin, executive director of LEAP, spoke at Cato about the 10 Rules educational DVD and he says that film ought to be used in police training–to show agents how to respect the constitutional rights of people in the community.
Ethan Nadelmann recently spoke at Cato on the prospects for drug policy reform. And the NYT had a good piece on the militarization of police tactics yesterday.
For more Cato work on drug policy, go here.
More on the Constitution’s Lack of a Drug-War Exception
Challenges to Florida’s unconstitutional drug laws continue to gain momentum. Following a successful federal district court challenge to the constitutionality of state statutes lacking a mens rea requirement (mental culpability, rather than, for example, incidental possession), people convicted under them have come forward en masse to ask Florida courts to reexamine their convictions.
As described in the background to a previous brief in the case of Florida Dept. of Corrections v. Shelton, the district court held that these sorts of laws offend the constitutional guarantee of due process. Florida’s Supreme Court has now consolidated over 40 appeals resulting from that federal court decision (which itself is now on appeal). Cato has once again joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, Libertarian Law Council, and 38 law professors on a brief supporting the rights of persons convicted under the “strict liability” statutes.
We urge the Florida Supreme Court to follow the federal district court’s lead and strike down laws prohibiting the sale, possession, or delivery of illicit substances without requiring mental culpability. That court now has the opportunity to reverse these unwarranted convictions and purge a nationally singular stain on civil liberties.
The name of the case is Florida v. Adkins.
Thanks to legal associate Paul Jossey for his assistance with this brief and blogpost.
A Global Initiative for Drug Policy Reform
The Beckley Foundation has just launched an important initiative in Great Britain and their new website has a gold mine of research related to drug policy.
On Tuesday, Cato hosted a conference on Ending the Global Drug War (those talks coming online soon).
New Study on Mexico’s Drug Cartels and the Global War on Drugs
Yesterday, Juan Carlos Hidalgo pointed out that Colombian president Juan Manuel Santos became the latest world leader to recognize the need to rethink the prohibitionist policies that allow powerful drug traffickers to flourish. Santos called for a new approach to “take away the violent profit that comes with drug trafficking” and that governments around the world, including the United States, the United Kingdom, and the European Union, need to debate legalizing select drugs, such as cocaine.
From Colombia to Mexico, the drug war rages on. Despite two decades of U.S.-aided efforts to eradicate drug-related violence in Colombia, the problem persists. Indeed, the trickle-down effects from Mexico southward now threaten to engulf Guatemala. Costa Rica, Honduras, and El Salvador are all experiencing alarming homicide rates at least partially related to drug trafficking. To address these spikes in violence and stem the flow of drugs, the United States has spent billions of dollars in Mexico and throughout Latin America. Sadly, there is little evidence that this policy has been successful, and the evidence mounts that it has been an outright failure.
A new policy is needed to stem the violence and consequences of the Mexican drug cartels pervasive power. In a new study released today, Ted Galen Carpenter, senior fellow, argues that the only lasting, effective strategy for dealing with Mexico’s drug violence is to defund the Mexican drug cartels. “The United States could substantially defund these cartels,” says Carpenter, “through the full legalization (including manufacture and sale) of currently illegal drugs.”
The new study, “Undermining Mexico’s Dangerous Drug Cartels,” is available here.
Legalize Drugs? Greenwald v. Walters
Best-selling author Glenn Greenwald debated former drug czar John Walters at Brown University last night before 300 students and faculty. Glenn authored Cato’s landmark study on the decriminalization of drugs in Portugal and he will be speaking at our drug conference next week.
There’s No Drug War Exception to the Constitution
Florida is so zealous in pursuing the war on drugs that its laws classify the possession, sale, and delivery of controlled substances as crimes not requiring the state to prove that the defendant knew he had possessed, sold, or delivered those substances.
In Florida Dept. of Corrections v. Shelton, state prosecutors convicted Mackie Shelton of transporting cocaine under one of these “strict liability” statutes, the trial judge having instructed the jury that the state only needed to prove that Shelton delivered a substance and that the substance was cocaine. Shelton successfully challenged the constitutionality of that state law in federal court, where the district judge overturned the conviction and noted that “Florida stands alone in its express elimination of mens rea as an element of a drug offense.”
Florida appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit. Cato has joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, and 38 law professors on an amicus brief supporting Shelton’s position.
The Supreme Court has recognized only limited exceptions to the general rule that criminal culpability requires mens rea (a guilty mind). These “strict liability” crimes fall under the rubric of “public welfare offenses” and are typically what most people would not consider “serious,” such as traffic violations and selling alcohol to minors. Policymakers justify dispensing with mens rea requirements in such contexts by citing the need to deter businesses from imposing costs on society at large, or the burden that having to prove mens rea in these sorts of cases would overwhelm courts, or that the penalties are relatively small and carry little social stigma.
Florida’s legislature, however, went well beyond the normal boundaries of public welfare offenses in imposing strict liability for drug crimes that can carry significant prison terms — and thus violated the due process of law and traditional notions of fundamental fairness. As an alternative argument purporting to save its drug laws, Florida points to the availability of affirmative defenses, that these defenses (e.g., “I didn’t know it was cocaine”) to a presumption of guilty intent take the statute out of the (constitutionally dubious) strict liability category.
But a state may not simply presume the mens rea element of a crime: In Patterson v. New York (1977), for example, the Supreme Court held that prosecutors cannot reallocate the burden of proof by forcing a defendant to prove an affirmative defense. In requiring defendants to prove that they are “blameless” in these sorts of drug crimes, Florida’s statutes fail constitutional muster.
We urge the Eleventh Circuit to affirm the district court’s ruling that the offending state law unconstitutional.
Government at War With Itself
An op-ed in the Washington Post discusses why federal farm subsidies don’t even make sense from an activist government point of view. Most farm subsidies go for animal-feed crops, which can be viewed as a subsidy for meat production. At the same time, the government propagandizes the public to follow healthy habits and eat lots of fruit and vegetables, but not so much meat.
At www.DownsizingGovernment.org, we’ve come across many federal policies that are contradictory. The government tells the public that X is good, but then it takes actions to do the opposite. Here are some examples:
- Government health experts tell new moms to breastfeed, but the government spends billions of dollars a year on the WIC program, which subsidizes baby formula for moms.
- The government imposes strict rules on property owners to protect wetlands, but the government’s Corps of Engineers and Bureau of Reclamation have destroyed vast amounts of wetlands.
- The government enforces strict anti-pollution laws, but the Department of Energy and other federal agencies have been notorious polluters.
- The Corps of Engineers has spent billions of dollars building levees to protect against flooding, but its own infrastructure has worsened the damage caused by hurricanes.
- The government imposes tight rules to ensure proper funding and to prevent abuse in private pension plans, but its own “pension plan”—Social Security—is a Ponzi scheme.
- The Constitution says that the federal government is created to “insure domestic tranquility,” but the government has spurred violence with alcohol prohibition and now the drug war.
My Cato colleagues are probably aware of many other contradictions, and it seems that the more the government intervenes in society, the more it will work against both the people and itself.
When the State Takes the Children
The New York Times has an article today about how city officials take children away from parents because of marijuana use. Here is an excerpt:
Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.
The article explains that even if a child is not immediately removed a “neglect finding” can kill prospects for certain jobs involving kids, such as a daycare assistant, and will make it easier for judges to order a removal down the road. Even though marijuana use is very common among whites, the neglect and removal cases are mostly brought against minorities.
When drug warriors are challenged about criminalizing marijuana use, they typically deflect the question by saying, “we’re not locking up nonviolent marijuana users.” Well that’s only because our prisons are overflowing already and they can’t convince enough lawmakers to build enough prison space to escalate the war further. Second, below the prison numbers a low scale war continues apace–tens of thousands of arrests and court appointments and, as this article shows, child removal proceedings.
New York should follow California’s approach to this issue–if the state can demonstrate actual harm to children from marijuana use, then a neglect case can be brought. Reporters should ask Mayor Michael Bloomberg whether his past drug use makes him unfit to be a parent or grandparent or to be in an occupation affecting the well-being of kids.
From Hell to Heaven
Cory Maye was in his home one evening minding his own business when his front door came crashing down. Frightened that criminals were going to harm him and his child, Maye quickly retrieved a gun. When his bedroom door came crashing down next, Maye fired. When the lights came on, it turned out that the intruders were police officers and that Maye had killed one of them. The nightmare had only just begun for Maye. Police and prosecutors twisted a case of self-defense into a “murder” charge and they sought the death penalty. Cato fellow Radley Balko read about the case when he was researching a paper concerning the militarization of police tactics and no-knock raids. Radley then wrote about the injustice of Maye’s situation and word spread via the internet. A new legal team took up the case and appeals followed. When a court ordered a new trial for Maye, prosecutors offered a deal–plead guilty to a lesser charge and Maye would be set free because he had already served years in a Mississippi prison. Maye took the deal even though many thought he should not have any criminal conviction on his record for what happened that night. Still, it is hard to blame a guy for wanting to get out of prison to see his children just as fast as he possibly could. Maye was released a few days ago and here’s a snap of him playing around with his son.
Congrats to Maye. Congrats to Radley. And congrats to Maye’s lawyers at Covington and Burling.
10 Years of Drug Decriminalization in Portugal
Ten years ago this month, Portugal rejected the conventional approach to drug policy–more laws, stiffer prison sentences, more police–and went the other way by decriminalizing all drugs, even cocaine and heroin. The drug warriors predicted a disaster. They said drug use would spike and there would be a public health crisis. That did not happen. As Glenn Greenwald showed in a 2009 Cato report, Portugal is doing better than before and in many respects is doing better than other countries in the European Union that take the hard-line, criminal approach to drug use. The buzzword in Washington these days is “evidence-based research.” Well, there you have it.
More here and here. Thanks to the Huffington Post for the pointer.
“Cory Maye Will Soon Be Free”
…that’s what former Cato policy analyst, Reason senior editor and now Huffington Post reporter Radley Balko reports:
I’m in Monticello, Mississippi, this morning, where Circuit Court Judge Prentiss Harrell has just signed a plea agreement between Cory Maye and the state. Maye has plead guilty to a reduced charged of manslaughter, and has been resentenced to 10 years in prison, time he has already served. He’ll be sent to Rankin County for processing. He should be released and home with his family in a matter of days.
Cory Maye’s is a story about a paramilitary-style drug raid gone grotesquely wrong, a cautionary tale about the human costs of the War on Drugs, and a lesson in how a dedicated investigative reporter can throw a wrench in the ever-grinding wheels of injustice. If you’re unfamiliar with the case, and Radley’s role in it, watch the terrific Reason.tv video, “Mississippi Drug War Blues” below, and read this blogpost I wrote a couple of years ago, when Radley’s work first started drawing attention to the case: “The Cato Policy Analyst Who (May Have) Saved a Man’s Life.” We can remove the “may have” now.
And here’s Radley’s update at the Huffington Post.
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