Trapped behind bars for too long
By Editorial Board,
LAST WEEK, President Obama granted clemency to eight people serving long sentences on crack-cocaine convictions. It was long past time the president acted — and it remains long past time for many others enduring excessive sentences in federal prison.One person on Mr. Obama’s list, Clarence Aaron, was serving three life sentences for participating in a drug deal. Another, Stephanie George, was handed a life sentence for stashing her boyfriend’s drugs. These are just a couple of the nearly 9,000 people convicted under harsh anti-crack policies that Congress established in 1986 and then revised in 2010. By that point, the old standards were widely considered unfair as well as needlessly expensive.
“Because of a disparity in the law that is now recognized as unjust,” Mr. Obama said last week, “they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”
Congress and the president agree that the old rules were unwise, yet many others sitting in prison deserve a chance to show that their sentences did not fit their crimes. The fairest and most comprehensive way to give them that chance would come from Congress, which could impose a broad solution and enlist federal judges to apply it. Lawmakers are considering various ways to ease sentences — and the strain on the prison system — by applying new sentencing standards to old convictions. A bill sponsored by Sens. Richard J. Durbin (D-Ill.) and Mike Lee (R-Utah) would require inmates seeking relaxed punishments to apply to federal judges, who would have leeway to reduce sentences — or leave them in place, if appropriate.
But the president has the unrestricted authority to grant clemency to federal convicts. Thousands of people were sentenced under an unjust system the president has condemned. Why should he stop with granting clemency to only eight of them? If it makes sense for lawmakers to establish a new pathway for relief, it makes sense for the executive branch to apply the same logic with the powers and resources it already has.
A couple of decades ago, when urban crime was a raging issue, letting even eight crack offenders out of prison would have been politically treacherous. It is a sign of how much attitudes have changed — for the saner — that a budding criminal justice reform effort has not been met with popular concern or even much notice. Politicians should embrace the opportunity to rebalance, in a measured way, how the country punishes criminals. Mr. Obama’s latest move is welcome. We hope it is not his last.
http://www.washingtonpost.com/opinions/a-time-for-clemency-on-crack-cocaine-sentences/2013/12/23/bbae0aec-6b6c-11e3-aecc-85cb037b7236_story.html?hpid=z6
Leahy and Paul plan on mandatory sentencing makes sense
By George F. Will,
Libertarians believe government should have a compelling reason before it restricts an individual’s liberty. Today’s liberals believe almost any reason will do, because liberty is less important than equality, fraternity, fighting obesity and many other aspirations. Now, however, one of the most senior and liberal U.S. senators and one of the most junior and libertarian have a proposal that could slow and even repair some of the fraying of society.Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.
Such crimes are multiplying at a rate of more than 500 a decade, even though the Constitution explicitly authorizes Congress to criminalize only a few activities that are national in nature (e.g., counterfeiting, treason, crimes on the high seas). The federal government, having failed at core functions, such as fairly administering a rational revenue system, acts like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.
Approximately 80,000 people are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed. This violates the mens rea requirement — people deserve criminal punishment only if they intentionally engage in conduct that is inherently wrong or that they know to be illegal. No wonder that the federal prison population — currently approximately 219,000, about half serving drug sentences — has expanded 51 percent since 2000 and federal prisons are at 138 percent of their supposed capacity.
The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums. This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge. Paul says mandatory minimum sentences, in the context of the proliferation of federal crimes, undermine federalism, the separation of powers and “the bedrock principle that people should be treated as individuals.”
Almost everyone who enters the desensitizing world of U.S. prisons is going to return to society, and many will have been socially handicapped by the experience. Until the 1970s, about 100 per 100,000 Americans were in prison. Today 700 per 100,000 are. America has nearly 5 percent of the world’s population but almost 25 percent of its prisoners. African Americans are 13 percent of the nation’s population but 37 percent of the prison population, and one in three African American men spends time incarcerated. All this takes a staggering toll on shattered families and disordered neighborhoods.
The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.
Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.
http://www.washingtonpost.com/opinions/george-will-leahy-and-paul-plan-on-prison-sentences-makes-sense/2013/06/05/9731afba-cdfc-11e2-8845-d970ccb04497_story.html
Time to end the war on drugs
By Katrina vanden Heuvel,
With his final election behind him, and the final attack ads safely off the air, President Obama now returns to his regularly scheduled programming — governing. Yet, the chatter about his second term agenda, from deficit reduction to immigration reform, ignores one critical issue: ending our nation’s inhumane, irrational — and ineffective — war on drugs.Since its launch in 1971, when President Nixon successfully branded drug addicts as criminals, the war on drugs has resulted in 45 million arrests and destroyed countless families. The result of this trillion dollar crusade? Americans aren’t drug free — we’re just the world’s most incarcerated population. We make China look like Woodstock. We’re also, according to the old definition, insane; despite overwhelming evidence of its failure, our elected officials steadfastly refuse to change course.
But on November 6, citizens in Colorado and Washington became the first to approve ballot initiatives legalizing the recreational use of marijuana. Their success illustrates growing tolerance and, indeed, support for a smarter approach that could change, and even save, countless lives.
Now, the question is how the federal government will respond to these new state laws, since they directly conflict with existing federal restrictions on drugs. Recreational use might be legal in the eyes of Colorado and Washington, but Uncle Sam can still put the boot down.
President Obama has a choice. He could direct the Department of Justice (DOJ) to crack down and prevent the two states from moving forward. Or he could finally, fully embrace sensible drug laws.
There are reasons to be encouraged. During the 2008 campaign, Obama pledged to leave state medical marijuana laws alone. He seemed to sympathize with the African American and Latino communities, disproportionate casualties of the drug war. Surely, Obama knew that one chance run-in between his youthful “choom gang” and the police years ago would have deprived him of the office he holds today.
In October 2009, the DOJ declared that the federal government would not prosecute individuals, including distributors and cultivators, found in possession of marijuana, as long as they were complying with state medical marijuana laws.
The following year, President Obama signed the Fair Sentencing Act, which dropped the five-year mandatory minimum sentencing for simple possession of crack cocaine. The law also reduced the unjust disparity in federal sentencing for crack and powder cocaine.
But in October 2011, the DOJ began large-scale raids on medical marijuana cultivators and distributors, state law be damned. Federal authorities have since raided and shut down 600 dispensaries in California alone. A fine use of law enforcement resources in these austere times.
Enough is enough. The president should instruct the DOJ to de-prioritize marijuana-related cases in states that allow for medical marijuana, and to allow Colorado and Washington to move ahead with implementation of their new laws. He should ensure that federal appointees dealing with the issue, including U.S. Attorneys, are fair-minded.
And he should take the fight to Congress, where members of both parties might be able to find common ground. Obama can lead across party lines by seeking out libertarian members of the GOP to join him in crafting better drug policies. In fact, in May, Democratic Reps. Sam Farr (Calif.) and Maurice Hinchey (N.Y.) joined with Republican Dana Rohrabacher (Calif.) on a bill that would have cut federal funding for the Justice Department’s marijuana busts. And Senator Rand Paul recently indicated he might work with Democrat Pat Leahy to eliminate mandatory minimum sentences for marijuana possession.
Meanwhile, if left free of federal intrusion, Colorado and Washington might become a model for legalizing and taxing marijuana. If successful, the experiment could yield millions in tax revenues and drastically decrease incarceration rates, while giving members of Congress more incentive to change federal law. It could even help improve U.S. relations with Latin America, and help demilitarize our hemispheric policies with our closest neighbors, particularly Mexico.
If Congress fails and, four years from now, a new president instructs the DOJ to crack down again, any such reforms would be at risk. But if Colorado and Washington show positive results, the public, which already believes the drug war has failed, might support wider implementation, and perhaps force a federal solution.
To be sure, Colorado and Washington are not the final battlefields of the war on drugs. Marijuana is not the sole drug behind our astounding incarceration rate for nonviolent drug-related crimes. We’re a long way from a just system that addresses drug use with treatment rather than punishment. Still, we might be one step closer to ending our failed attempt at marijuana prohibition, much as, in 1933, public opinion finally brought an end to alcohol prohibition.
In the first proclamation of Thanksgiving, President Lincoln acknowledged the many gifts bestowed by a god who, “while dealing with us in anger for our sins, hath nevertheless remembered mercy.” This holiday, as President Obama pardons the traditional turkey, let’s hope he also considers the millions of Americans trapped in a cruel, senseless system. May he heed Lincoln’s words and offer them forgiveness and, above all, hope.
http://www.washingtonpost.com/opinions/katrina-vanden-heuvel-time-to-end-the-war-on-drugs/2012/11/19/2ef5099e-326e-11e2-9cfa-e41bac906cc9_story.html
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