Criminal Justice

  • September 26, 2013
    Guest Post

    by Alex Kreit, Associate Professor of Law, Director, Center for Law & Social Justice, Co-Director, Criminal Law Fellowship Program, Thomas Jefferson School of Law. Kreit is also author of the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

    When Gil Kerlikowske took office as drug czar four years ago, he said he was going to retire the concept of the war on drugs. During Obama’s first term, however, his policies did not live up to the bold rhetoric.  There were a handful of reforms -- perhaps most notably, a reduction (though not elimination) of the disparity between crack and powder cocaine. But at its core, federal drug policy remained almost entirely unchanged between 2009 and 2012.

    In recent weeks, the Obama administration has turned its words into action by tackling one of the most significant and criticized features of the drug war: mandatory minimum sentencing.

    Enacted in the 1980s, the mandatory minimum drug sentencing laws were the embodiment of the “war on drugs” mentality.  Indeed, it’s difficult to think of another federal law or policy as closely linked to the drug war. 

    Last month, Attorney General Eric Holder announced a new charging policy, instructing federal prosecutors not to seek mandatory minimum sentences in drug cases that met certain criteria.  With some of the criteria left open to interpretation, I wrote last month that only time would tell the policy’s true impact. Will the Department of Justice closely monitor local prosecutors to ensure compliance and consistent interpretation of the policy?  Or, will federal prosecutors be given the leeway to circumvent or narrowly apply the new policy?

    While it will take at least a few more months to know the answers to these questions, last week Attorney General Holder issued a second memo that provides reason for optimism. Holder’s most recent memo expands the new policy by applying it to defendants who have already been charged and encouraging prosecutors to follow the guidance even in cases where the defendant has already pled guilty and is awaiting sentencing, where it is “legally and practically feasible.”

    This development is a hopeful sign that the Department of Justice is serious about its new policy. 

  • September 24, 2013

    by Nicandro Iannacci

    As the adage goes, politics makes for strange bedfellows. Take, for example, the Senate Judiciary Committee, which convened a hearing last week to consider mandatory minimum sentencing reform. The meeting came on the heels of recent announcements from Attorney General Eric Holder that signaled change in the executive enforcement of sentencing laws. The reigning congressional climate of polarization, clouded in recent weeks by impending fiscal fights, made all the more compelling the general agreement across ideological divides that change is needed, now.

    Competing legislation introduced this year is evidence of that consensus, even if the parties involved don’t totally agree on specifics. The Justice Safety Valve Act of 2013, co-sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.), was introduced in March; the Smarter Sentencing Act of 2013, co-sponsored by Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah), was announced just last month. The bills have much in common, though the Leahy-Paul proposal goes further than its counterpart by eliminating entirely mandatory sentences for selected non-drug crimes.

    Nevertheless, the sponsors of both bills were short on comparison and long on unison as they addressed the issue before a packed hearing room featuring numerous family members of loved ones serving mandatory sentences. Sen. Leahy, chairman of the committee, called the current system “unsustainable,” noting that the U.S. prison population has risen 700 percent since 1970, paralleling a rise in cost to $6.4 billion per year. “Fiscal responsibility demands it,” he said of reform. “Justice demands it.” Sen. Durbin asked a simple question of the sentencing laws: “Is America safer?” Answering in the negative, he said Congress is “doing everything we can to sensibly reduce the level of incarceration in this country.”

    From across the aisle, Sen. Paul kicked off the agenda with a scathing condemnation of the impact sentencing laws have on minority groups. “If I told you that one out of three African American males is forbidden by law from voting, you might think I was talking about Jim Crow 50 years ago,” Paul said. “One out of three African-American males are forbidden from voting because of the War on Drugs.” (His comments echoed the work of OSU Prof. Michelle Alexander in her important book, The New Jim Crow, featured on ACS BookTalk.)

  • September 20, 2013
     
    During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.
     
    As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."
     
    There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.
     
    Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
     
  • September 3, 2013
    Guest Post

    by Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, University of Denver Strum College of Law

    The Department of Justice recently announced how it would enforce federal marijuana law in those states seeking to legalize marijuana under their own laws. In a memo to United States Attorneys around the country, Deputy Attorney General James Cole set out the priorities that govern the federal government’s enforcement of the Controlled Substances Act’s (CSA) marijuana prohibition. The government, Cole wrote, was primarily concerned with the distribution of marijuana to minors, the involvement in marijuana trafficking of organized crime, the distribution of more serious drugs along with marijuana, and the transfer of marijuana from states where the drug was legal under state law to those where it was not.  So long as those states seeking to legalize marijuana had robust regulatory regimes in place to address these concerns, businesses acting in conformance with state law would generally not be an appropriate target of federal enforcement, whether criminal or civil.

    The DOJ memo marks a major change in direction for the federal government. As recently as 2010, Attorney General Holder had made clear to the people of California that the federal government would not countenance a state decriminalizing and regulating recreational marijuana manufacture and sale. Furthermore, previous enforcement memoranda from the DOJ had drawn a distinction between legitimate medical use of marijuana on the one hand (which the government stated would not be an enforcement priority) and large-scale commercial production (which remained a valid target for federal prosecution). The 2013 Cole Memo makes clear that the size and for-profit nature of marijuana establishments was but one factor to be considered by United States Attorneys in determining whether to enforce the CSA in states that had sought to legalize marijuana. 

    For state officials in Washington and Colorado – which both passed marijuana legalization initiatives in 2012 – this word from the DOJ was long-overdue good news; with this announcement, the states could complete the final stages of their marijuana regulations and begin licensing businesses to open their doors in early 2014.

    But the memo can do only so much to alleviate the uncertainty and confusion caused by the continuing federal marijuana prohibition. In the first place, the memorandum is a unilateral act of the executive and can always be undone by other unilateral executive actions; when a new presidential administration takes over in January 2017, there is no telling how it will view the federal government’s marijuana enforcement priorities. 

  • August 16, 2013

    U.S. Rep. John Lewis (D-Ga.) during this year’s ACS National Convention spoke a bit about his upbringing in a brutally racist society in rural Alabama. It was as Lewis recounted a time when he found inspiration in the words he heard over the radio from Martin Luther King Jr. and about the actions of Rosa Parks.

    “The action of Rosa Parks, the leadership and words of Dr. King inspired me to get in the way, to get into trouble, good trouble, necessary trouble,” he said at the ACS Convention.

    Lewis, in a New York Times feature, said that 50 years after the March on Washington for Jobs and Freedom, at which Lewis spoke, the nation is still haunted by “our dark past.” This summer alone has provided too many examples of a nation resistant or fatally indifferent to the lives and rights of minorities. Indeed great economic inequalities and blatant inequalities in the criminal justice system are festering, not receding. These inequalities are decimating minority communities from coast to coast.

    At the March on Washington for Jobs and Freedom 50 years ago, Lewis in front of the Lincoln Memorial provided a rousing call for equal opportunity, equality under the law. Today he is still pursuing the cause. At the ACS Convention Lewis presciently anticipated a devastating opinion from the U.S. Supreme Court that gutted the landmark Voting Rights Act. Lewis said, “I have a strange feeling in America, at this point in history, we’re just a little too quiet. We’ve come to a point where we almost want to resign, and say this is just the way it is. But it doesn’t have to be this way. There are still too many people in our society who have been left out and left behind.”

    Starting next week and running through Aug. 28 an array of groups, such as the Leadership Conference on Civil & human Rights, The Urban League, NAACP, AFSCME, AFL-CIO, SEIU, MALDEF, the National Gay and Lesbian Task Force and many others will host events daily commemorating the historic March and talking about the challenges and obstacles to genuine equality and economic justice that remain. A schedule of those events is available at the A. Philip Randolph Institute’s website.

    As Lewis said at the ACS Convention the nation has made strides, but much work remains to be done. Lewis urged the gathering, “Don’t give up, don’t give in, our struggle is one that does not last one day or one week, or one year. It is a struggle of a life time, or many life times. We must do what we can, as Dr. King said, to create the beloved community.” Video of Lewis’s speech is here.