Tag: drug war

The Sentencing Reform and Corrections Act Is a Compromise, but a Pretty Good One

Last week a bipartisan group of senators, led by conservative Senate Judiciary Chairman Chuck Grassley (R-IA), announced the Sentencing Reform and Corrections Act of 2015.

The bill clearly represents a compromise between criminal justice reformers and more conservative law-and-order legislators, but the aggregate effect on the criminal justice system would be a substantial improvement.

On the positive side, the bill reduces several mandatory minimums relating to non-violent drug and firearm offenses (notably reducing the “three strikes” life sentence to 25 years), adds several safety valves to allow judges to adjust the penalties for certain non-violent offenses, and in many cases works retroactively to lower the excessive sentences of those already convicted of the relevant crimes.  Further, the bill would require the federal government to compile and publish a database of all federal crimes, their elements, and their potential penalties.  In addition, the bill would restrict the use of solitary confinement on juvenile offenders, create a new system for assessing the risk level of federal prisoners, among several other corrections changes.

On the other hand, the bill creates brand new federal mandatory minimum sentences for interstate domestic violence crimes that result in death and for providing prohibited support to terrorist organizations. It’s unclear why legislators feel that terrorism suspects are treated too leniently by the current sentencing structure, and taking discretion away from judges to impose sentences based on the particular facts of the cases before them is a step back.  Also on the negative side, the bill increases the mandatory minimum for felons caught in possession of a firearm from 10 to 15 years.  There are nearly 6 million convicted felons in the United States, a great many of them having been convicted of non-violent drug offenses. Once again, it is unclear why legislators, rather than judges and juries, should determine the proper punishment for a felon who is caught with a firearm, or why the current 10 year mandatory prison sentence is considered insufficient.

President Obama Announces Drug Sentence Commutations

Today President Obama announced that 46 non-violent drug offenders will have their sentences commuted and be released this year.  The announcement comes ahead of President Obama’s speech on sentencing reform later this week from a prison in Oklahoma.

The vast majority of the offenders were convicted of cocaine offenses, along with a handful of marijuana cases and some general “controlled substance” violations.  The lowest initial sentence among the 46 was 15 years, while several received life sentences.  In issuing the commutations the White House noted that, due to recent sentencing reforms, these sentences are out of step with the sentences the offenders would receive for the same violations today:

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system. Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

The list of recipients, along with their offenses, can be found here.  

President Obama Wields Much More Influence over Police than He Admits

Taking time out of his press conference with Japanese Prime Minister Shinzō Abe on Tuesday, President Obama addressed the chaos in Baltimore following the unexplained death in custody of Freddie Gray. 

While pleading for calm, President Obama lamented his lack of authority to fix the problem:

Now, the challenge for us as the federal government is, is that we don’t run these police forces.  I can’t federalize every police force in the country and force them to retrain.  But what I can do is to start working with them collaboratively so that they can begin this process of change themselves. 

Obama also lamented the lack of political momentum to address the poverty and violence afflicting communities like Baltimore:

That’s how I feel.  I think there are a lot of good-meaning people around the country that feel that way.  But that kind of political mobilization I think we haven’t seen in quite some time.  And what I’ve tried to do is to promote those ideas that would make a difference.  But I think we all understand that the politics of that are tough because it’s easy to ignore those problems or to treat them just as a law and order issue, as opposed to a broader social issue.

Both of those lamentations are misleading.

While it’s true that the federal government generally lacks the power to “force” local police departments to change their behavior, Obama’s comments completely omit his role in administering several federal policies that facilitate, and even incentivize, the abuses and tensions he condemned.

The federal drug war tears apart families through mass incarceration and violence and unjustly forces millions of (especially poor, minority) Americans to carry the stigma of being a convicted criminal. Prohibition, just as it did in the 1920s and 30s, has turned huge swaths of urban America into battlefields in the competition for black market real estate. President Obama has already demonstrated a willingness to ease federal drug enforcement in several states, and there is nothing keeping him from expanding that rollback.  He has also pardoned several non-violent drug offenders, even while federal prosecutors convict new ones every day.

Mass Surveillance: From the War on Drugs to the War on Terror

At first glance, the USA Today headline seemed like many others in the nearly two years since Edward Snowden’s explosive revelations: U.S. secretly tracked billions of calls for decades. And while the program essentials were the same—the secret collection of the telephone metadata of every American– there were two key differences between this story and the hundreds before it on this topic. The offending government entity was the Drug Enforcement Administration, and the warrantless surveillance program was launched during the first Bush administration.

Justice Department officials told Reuters that, “All of the information has been deleted.”  “The agency is no longer collecting bulk telephony metadata from U.S. service providers.” However, DoJ provided no actual proof of the alleged data destruction, and the DoJ Inspector General only recently began an inquiry into the program. While it now seems fairly clear that the DEA’s “USTO” metadata collection program served as a model for the NSA telephony metadata program conducted under Sec. 215 of the PATRIOT Act, what is also clear is that Americans are now confronting a government surveillance apparatus that is truly vast. As Ryan Gallagher of The Intercept noted, this particular DEA mass surveillance program is just one of several undertaken by the agency over the past three decades.

How many other such programs exist at other federal agencies, whether inside or outside of the U.S. intelligence community? And how far back do such programs go? How many members of Congress knew, and for how long? Was this DEA program concealed from the agency’s inspector general for two decades, or did the IG simply fail to investigate the program year after year out of apathy or indifference?

If the past is any guide at all—and the surveillance scandals of the 1960s and 1970s are a very good guide—we are once again confronting a level of government over-reach that calls for a comprehensive, public accounting.

In is new book, Democracy in the Dark, former Church Committee chief counsel Fritz Schwartz notes that “…too much is kept secret not to protect America but to keep illegal or embarrassing conduct from Americans…the Church Committee also found that every president from Franklin Roosevelt to Richard Nixon had secretly abused their powers.” For the paperback edition of his book, Schwartz is going to have to add more American chief executives to his list.

The 4th Amendment Is Another Victim of the Drug War

Over at the Washington Post, Radley Balko details a recent Fourth Circuit ruling overturning an award for a father whose son was shot and killed in a military-style SWAT raid after marijuana residue was found in an outside garbage bag. A jury awarded the father $250,000 after it was shown that the police failed to comply with their obligation to knock and announce their presence before barging in and that they lied about several aspects of the raid.

Without repeating the entirety of Balko’s excellent analysis, a particularly troubling aspect of the ruling is the nonchalant way in which the Fourth Circuit judges, even in dissent, treat the militarized raid over marijuana residue and dispense with any suggestion that such escalated violence is constitutionally questionable:

Let’s first start by noting one very important issue that is not in dispute—whether the massive amount of force the police brought to bear in this case was reasonable under the Fourth Amendment. As far as the federal courts are concerned, it was. As Judge Pamela Harris points out in her dissent, “The point here, to be clear, is not to take issue with the Officers’ decision to execute a search warrant based on marijuana traces by way of a military-style nighttime raid.”

Harris is correct. The courts long ago decided that dangerous, punishing SWAT-style raids to search for pot—even when there is no evidence of distribution—are reasonable under the Fourth Amendment. A lawsuit arguing otherwise will be promptly tossed.

Balko then points out that such behavior is precisely what the Fourth Amendment was designed to prevent:

President Obama’s Dismissal of Drug Reform

Yesterday President Obama seemed to make light of the push for drug reform (again), arguing that young Americans should put it at the bottom of their priority list in favor of issues like climate change and war:

I understand this is important to you but, you know, you should be thinking about climate change, the economy, jobs, war and peace. Maybe, way at the bottom, you should be thinking about marijuana.

As a member of that millennial generation, I’d like to ask: why?

Setting aside the strange suggestion that environmental and peace activism are somehow mutually exclusive with opposing the drug war, I would suggest that Americans have much more influence over drug policy than we have over the global climate or the U.S. government’s penchant for warmaking. 

Despite the President’s insinuations, the fight to end the drug war isn’t just a crusade by young stoners to get high without worry of arrest.  Prohibition doesn’t work.  It didn’t work in the 1920s when alcohol prohibition turned entire American cities over to organized crime, and it doesn’t work in 2015.

The War on Drugs is a key reason why America’s incarceration rate is off the charts, why more than 60,000 Mexicans have been killed in drug violence over the last decade, why violent gangs control entire swaths of urban America the U.S. prison system, why there are more than a million drug arrests clogging up our courts every year, why our cherished protection from unreasonable searches and seizures has been eroded and twisted to nearly nothing, and why paramilitary police raids have gone up 1,500% in the last generation, leaving dead bodies and maimed children in their wake.

To his credit, President Obama has made some positive policy decisions to lessen the burden of the drug war.  His decision to “de-prioritize” marijuana busts in jurisdictions that have voted to legalize marijuana is commendable.  But that is merely one small tile on a vast mosaic of ruinous government prohibition efforts.

There are thousands of non-violent drug offenders in federal custody which President Obama could free with the stroke of a pen today.  There are hundreds of state and local law enforcement agencies receiving military weaponry from the Obama Administration, while the administration’s own task force acknowledges there is very little accountability, training, or respect for civil liberties built into the weaponry distribution system.  There are thousands of immigrants seeking refuge in America from the violence spawned by our drug war.

I don’t see what’s so funny or unimportant about any of this.

Joe McNamara, RIP

Joe McNamara was a former police chief and scholar at the Hoover Institution.  He was an outspoken critic of the drug war and devoted much of his time to converting people within the law enforcement community. 

Here is a talk that he gave at Cato’s 1999 conference, Beyond Prohibition:

Here is an article he prepared for Regulation Magazine in the wake of the 9/11 terrorist attacks, “The Defensive Front Line.”

Joe McNamara, RIP