Author Archive

How The Drug War Disappeared The Jury Trial

gavelThe criminal jury trial is a vital check against prosecutorial excesses, police misconduct, and arbitrary state power. But over the last three decades, criminal justice policy has transferred enormous amounts of power to prosecutors and away from juries and judges. Judges once had wide discretion in weighing the facts and circumstances of each case prior to sentencing. Mandatory sentencing laws give control of sentencing proceedings to prosecutors instead, leading one federal judge to describe the process of sentencing someone to years in prison as having “all the solemnity of a driver’s license renewal and [taking] a small fraction of the time.”

For example, when United States Army veteran Ronald Thompson fired two warning shots into the ground, he intended to scare off his friend’s grandson, who was attempting to enter her home after she denied him entry. He never imagined his actions would leave him facing decades in prison.

He was charged “with four counts of aggravated assault with a firearm” under Florida’s 10-20-Life mandatory minimum gun law. Prosecutors used the minimum twenty years in prison he faced to try to avoid a trial by asking him to accept three years in prison. While the deal remained on the table throughout the trial, he was ultimately convicted and sentenced to twenty years in prison.

Ronald Thompson’s case, and so many others, reveals that prosecutors don’t think that twenty-year sentences for shooting into the ground constitute justice. Why else would the plea bargain stay on the table.

The case is an example of the trial penalty in action. Utilized by prosecutors to scare accused citizens into pleading guilty, the trial penalty threatens severe sentencing outcomes if found guilty at trial compared to the plea. And the the last thirty plus years have shown that it works.

Prior to 1980, the percentage of cases resolved by guilty pleas was anything but consistent. But since then the trend has risen sharply from seventy-seven percent to, according to a recent Supreme Court case opinion, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”

By passing laws with fixed-minimum sentences for almost all crimes, legislatures, beginning largely in the 1980′s, removed discretion over offender sentencing from judges and handed prosecutors the power to determine which sentence a defendant will receive.Judges have no power to override the mandatory prison terms these laws carry, regardless of the individual circumstances of each case. This is especially troubling because of the overly punitive penalties these laws carry. Even worse, when a case does goes to trial, the jury doesn’t even know how much time a defendant faces.

The prosecutor alone chooses whether to charge the accused, which charges to file, whether to drop charges, and whether or not a plea on lesser charges will be offered, outside of any judicial oversight. These unilateral discretionary decisions “often predetermine the outcome of a case since the sentencing judge has little, if any, discretion in determining the length, nature, and severity of the sentence.” This results in radically different sentencing outcomes between the sentence a defendant receives who loses at trial compared to one who pleads guilty.

These enormously different outcomes effectively coerce criminal defendants into pleading guilty. Mandatory minimum sentencing laws give prosecutors the leverage and superior bargaining position needed to coax accused citizens, many of whom are completely innocent, into surrendering a fundamental right for a perceived benefit – a significantly lesser sentence for forgoing a jury trial and pleading guilty.

Well before the Declaration of Independence and the Constitution were even an idea, the jury trial was held as an inherent right – representing a great protection against government oppression and tyranny. And in the 1968 case of Duncan v. Louisiana, the Supreme Court affirmed and made clear that the Sixth Amendment right to a jury trial is absolutely fundamental to the bedrock principles of liberty and justice, stating that the jury is “an inestimable safeguard against the corrupt or overzealous prosecutor . . . .”

So what does it say about the current state of American criminal justice where those who exercise this fundamental right are actively punished for doing so, while others are coerced from exercising it altogether?

With an out-of-control prison population and burgeoning criminal codes full of laws that punish a host of non-violent consensual behavior, it’s far past time to end the one-size-fits-all mandatory minimum sentencing laws the 1980′s drug war fervor brought us. Doing so will allow the role of the criminal jury trial to at least be restored to a modicum of its intended status – a check on the largely unconstrained and arbitrary police power of the state. A truly free society requires it.  As 19th century American intellectual Lysander Spooner so aptly wrote back in 1852, “if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.”​

Thanks to Young Voices, this piece originally appeared at Outside the Beltway and was also praised by Brian Doherty at Reason and Megan McArdle at Bloomberg.


Important New Paper From ACLU Looks at Impact of Solitary Confinement on Death Row Inmates

Image via ACLU

Image via ACLU

The paper opens thusly:

Most death row prisoners in the United States are locked alone in small cells for 22 to 24 hours a day with little human contact or interaction; reduced or no natural light; and severe constraints on visitation, including the inability to ever touch friends or loved ones.

This stark reality endures at a time when the United States’ experiment with the death penalty is at a crossroads. On one hand, in 2013, another state repealed the death penalty ‟ Maryland. That makes six states in the last six years ‟ Maryland, Connecticut, Illinois, New Mexico, New Jersey, and New York ‟ that have repealed the death penalty, bringing the number of states without it to 18. Today, more than half of the states have either eliminated the death penalty completely or have not executed anyone for at least 10 years. Thirty states, plus federal and military jurisdictions, have not executed anyone in at least 5 years. This steady march toward repeal seems to indicate that it is only a matter of time before the Supreme Court will declare the death penalty cruel and unusual punishment and bar its use nationwide.

But until that time, many states will continue efforts to execute, often after death-sentenced prisoners have languished in solitary confinement on death row for years and even decades. Death row prisoners are subjected to these harsh conditions not because of their conduct in prison or any demonstrated dangerousness to staff or other prisoners. They are subjected to extreme isolation due to their sentences alone.

While many in the United States understand that part of the horror of the death penalty is living day in and day out with the threat of execution, most are unaware that the vast majority of death row prisoners also suffer under conditions of extreme isolation that compromise their physical and mental health and needlessly inflict pain and suffering. Indeed, researchers have found that the clinical effects of extreme isolation can actually be similar to those of physical torture. For this reason, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment found that solitary confinement conditions can amount to “inhuman and degrading treatment” and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement in excess of 15 days.

The report also contains this horrid and harrowing description of what solitary confinement is really like, from Anthony Graves, a former death row inmate who was wrongfully convicted and ultimately exonerated of a crime he did not commit:

I saw guys who dropped their appeals because of the intolerable conditions. Before his execution, one inmate told me he would rather die than continue existing under these inhumane conditions. I saw guys come to prison sane, and leave this world insane, talking nonsense on the execution gurney. One guy suffered some of his last days smearing feces, lying naked in the recreation yard, and urinating on himself.

Check out the entire report here.

How Blind Partisan Loyalty Leads to Drug Policy Incompetence

This paragraph was written at The Washington Post:

Drug policy has improved during the Obama years. The president and his key drug policy advisers have largely abandoned the harsh war-on-drugs rhetoric of previous administrations. The number of incarcerated drug offenders has declined for the first time in decades. On the demand side, health reform will greatly expand access to substance abuse treatment. Drug markets are less violent than they used to be, too, which creates greater political space for less punitive policies.

Where to begin. It started out so promising, with the piece showing the evidence of the disaster that is drug prohibition, yet, despite this, there is no mention of the policy of legalization, largely because the author is a classic Kleiman/Sabet third-wayer technocrat on drug policy, who opposes drug legalization.

Um, abandoned the war on drugs rhetoric? Ah, this one again. Classic prohibitionist trope. Apparently if you do not say war on drugs, then it must not exist, right? Yet Obama has ramped up the drug war even more so, raiding more medical marijuana dispensaries, then his predecessor. I just do not understand how that can be an argument in favor of how drug policy is better now. Like almost everything Obama does, it is all words, and his drug policy actions seriously betray his words. In fact, his drug policy actions betray words he stated before he was even in the Senate when he said he supported decriminalizing marijuana.

This argument is so fundamentally bankrupt, it basically boils down to, “sure Obama’s administration is waging a war on drugs, at least equal to his predecessors, but, hey, they do not say war on drugs and Obama Is A Good Benevolent Person, so therefore everything is okay.” Moreover, just like Sabet does all the time, Pollack and his ilk love to pretend that only incarceration matters. They routinely shout about how low-level drug users do not go to prison. Regardless, you do not have to be convicted of a drug crime and sent to prison for a drug arrest to ruin your life. A simple drug arrest is sufficient to ruin someone’s life and ensure they do not have access to, inter alia, affordable housing, education, and employment. So really, that the number of incarcerated drug offenders has dropped is a disingenuous place to argue from about improvements in drug policy when, in fact, one does not need be incarcerated for a drug crime to ruin someones life, and the lives of their children, family, and community members.

I know very little about Obamacare, but touting it as a success for anything seems a little odd. Even if the health law creates more of a space for the expansion of treatment programs it is critical to note what kind of treatment programs. Are they criminal justice based forced treatment programs or purely voluntary private and public treatment programs? If the former, then there is nothing positive about the health law. Drug courts and criminal justice based mandatory treatment treats all drug users as addicts who need help when the overwhelmingly number of them do not. This kind of coercive treatment also leads to more people being arrested and processed through the system, and since nothing is done on the front end and police are the gatekeepers to criminal justice based treatment, we will have more arrests and more prisoners than we should.

Failure rates are also high, while costs for drug courts also exceed private community based treatment programs that out perform drug courts. This isn’t even to mention how these coercive programs exacerbate racial disparities in the number of blacks arrested and imprisoned. Now, lets say that Obamacare establishes more access to private and public treatment. As Portugal has shown us, removing the stigma and criminal penalties for drugs is what leads people to treatment, not expanded access. Because, if the government still considers you a criminal, why would an addict voluntarily disclose the criminal activity they engage in, especially since the possibility of arrest and prosecution looms so large under our current policy of drug prohibition. So long as criminal penalties exist, a certain segment of the drug using population who actually need treatment will stay away for fear of winding up in a cage.

Lastly, drug markets are less violent now, really? Mr. Pollack, meet Mexico, Mexico, Mr. Pollack. Since Obama took over in 2009, the murder rate in Mexico has risen from 17.7 percent per 100,000 residents to 23.7 percent per 100,000. In addition, the number of cartel-related homicides increased from 2009-2010 by 70 percent and from 2010-2011 by 11 percent. I’m sorry Mr. Pollack, but no, drug policy has not improved under Mr. Obama — status quo is more like it. And when considering everything Obama said about this topic prior to his 2008 election, it is downright criminal.

It’s Caturday!

Caturday is back and features my tuxedo clad lady, Lucky. Enjoy!

photo 4 photo 3-12010-02-22 10.33.09 photo 3photo 1

Caturday archive

Happy Birthday Hayek



Today marks the 114th birthday of the great economist and political philosopher, Friedrich Hayek — author of such works as The Use of Knowledge in Society, The Road to Serfdom, and Law, Legislation, and Liberty. Hayek is easily the strongest intellectual influence on my own political philosohpy and my embrace of classical liberalism, and in honor of his birthday, I leave you with a couple of quotes from my favorite book of his, The Constitution of Liberty:

“If one objects to the use of coercion in order to bring about a more even or more just distribution, this does not mean that one does not regard these as desirable. But if we wish to preserve a free society, it is essential that we recognize that the desirability of a particular object is not sufficient justification for the use of coercion.”

“The case for individual freedom rests chiefly on the recognition of the inevitable and universal ignorance of all of us concerning a great many of the factors on which the achievement of our ends and welfare depend. It is because every individual knows so little and, in particular, because we rarely know which of us knows best that we trust the independent and competitive efforts of many to induce the emergence of what we shall want when we see it.”

Classic (Punk) Rock for Classical Liberals: Screeching Weasel

screechin weaselWith the Supreme Court decisions over DOMA and Prop 8 coming up, I’ve decided to feature Screeching Weasel‘s “I Wanna Be A Homosexual.” Frontman Ben Weasel gives his explanation in the liner notes of the band’s 1995 release of B-sides called Kill the Musicians:

“Homosexual” was written at the suggestion of Homocore pioneer/fanzine editor/filmmaker Bruce LaBruce who had heard about Sloppy Seconds’ “I Don’t Want to Be Homosexual” and thought we should respond (and for the record-we never felt that the Sloppys’ tune was homophobic, nor did we ever have any animosity toward the band-we just thought it would be funny). Bruce wrote a few lines and I made up the rest as I sang in the studio.

As an aside, I strongly recommend having an older brother that introduces you to all sorts of rad shit like this at a young age. I wore my Screeching Weasel shirt (exactly like the picture in the post) to school on the first day of 7th grade. As my teacher took attendance and I answered “here” when my name was called, he promptly responded with, “And that’s an awesome shirt by the way!” Soon thereafter I came to find out that he actually played in a punk rock band and swam in the same circle of musicians as my brother. Small world. Oh, and the Vice Principal didn’t think the Screeching Weasel shirt was so awesome. Due to the visible cigarette, I was made to wear it inside out for the remainder of the day (and every other time I wore it).


I’ve got a little lisp, and I’ve been working on my limp wrist.
Women are a drag, I think I wanna be a faggot, man.
A mincing ninny, prancing fairy, merry little queen.
A Bruce Labruce wet dream, a Nancy Boy with wings.

Shock the middle class, take it up your punk rock ass.
You rub your little thing, when you see phony dykes in Penthouse magazine.
So what’s the difference Mr. Cream Rinse, you just need a man.
A beefy leather fag, to take you out in drag oh yeah.

Call me a faggot, call me a butt loving, fudge packing queer.
But I don’t care ’cause it’s the straight in straight-edge,
that makes me wanna drink a beer and be a pansy, and be a homo.

Shock the middle class, take it up your punk rock ass.
You rub your puny thing, when you see studs with tight jeans pass you on the street.
Who wears short shorts? You wear short shorts.
You’re so full of shit
Why don’t you admit
That you don’t have the balls to be a queer.

Image via Screeching Weasel

Classic Rock for Classical Liberals archive

Drug Type and Quantity as Sole Determiner for Defendant Culpability at Sentencing

Carolina Academic Press

Carolina Academic Press

Over at Sentencing Law and Policy, Thomas Jefferson School of Law Professor Alex Kreit has been blogging for the past few weeks about his new casebook, Controlled Substances: Crime, Regulation, and Policy. The previous entries discussing the overview of the book, and some of the issues the book addresses, can be found here, here, and here.

So far the posts have been extremely interesting, and I would have loved the opportunity to take a class in law school solely dedicated to legal and policy issues pertaining to controlled substances.

But it was the topic of Professor Kreit’s third post on his casebook that particularly piqued my interest – measuring defendant culpability in drug cases:

Drug sentencing poses particularly difficult grading problems.  For crimes like murder or robbery, the essence of what makes the conduct wrongful is easy to grasp.  There may be disagreement about how to differentiate more and less serious homicides, for example, but the contours of the debate tend to present themselves more naturally.  Few would disagree that a person who kills “recklessly” should typically receive a lower sentence than someone who kills “intentionally” and so on.

I believe there is much less agreement about what it is that makes drug crimes fundamentally wrongful.  Is it the quantity of drugs involved?  The role the defendant played in the specific offense?  The defendant’s motive for becoming involved in drugs (for example, should a drug courier who is an addict be sentenced differently from one who is not)?  The defendant’s overall position in the drug enterprise (to the extent this can ever be pinpointed)?  (The argument that drug crimes are “victimless” and therefore not blameworthy at all is considered elsewhere in the casebook.)

Federal drug laws, and the laws of many states, have answered this problem by focusing largely on drug type and quantity.  The chapter begins with materials that look at this phenomenon.  Students will see the relationship between drug quantity and determinate sentencing laws.  Determinate sentencing requires measurables to work effectively and drug type and quantity are two of the easiest things to measure.  Certainly, weighing drugs is much easier than, for example, trying to define and prove someone guilty of being a “drug kingpin.”  But, is drug quantity really an accurate measure of culpability?  This is a theme that runs throughout the chapter with cases that continue to ask students to consider what factors should drive drug sentences.

As Professor Kreit notes, the real problem with making this determination is that the federal government and many states measure defendant culpability based on drug type and quantity alone. I wrote about the unintended and perverse consequences of only using drug quantity and type in a post last April regarding a case opinion where U.S. District Court Judge John Gleeson blasted the Department of Justice for their practice of charging low-level drug offenders with mandatory minimum penalties – penalties that were explicitly enacted in the Anti-Drug Abuse Act of 1986 to go after “kingpins” and high-level leaders and managers of drug enterprises:

The Anti-Drug Abuse Act of 1986 (the Act), passed by congress and codified at 21 U.S.C. § 841, established the mandatory minimum penalties that are now a hallmark of federal drug cases. But the vast majority of the way these mandatory minimum charges are used for drug crimes is in total contravention to the original purpose of the legislation.

As a U.S. Sentencing Commission report states, in passing the Act, “Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. Specifically, Congress intended to link the five-year mandatory minimum penalties to what some called ‘serious’ traffickers and the ten- year mandatory minimum penalties to ‘major’ traffickers.” Basically, the Act was meant to target the management of drug dealing syndicates, mid and high-level dealers, as well as the drug “kingpins” atop the organizations.

The problem is the Act seeks to determine the function of dealers in a drug business solely by the quantity of drugs a defendant is implicated with (mandatory sentences increase as the quantity of drugs increase), rather than specific roles individual dealers play within a criminal organization.

By passing a law simply focused on drug quantity in such broad language and with no requirement to prove a defendants specific role in a drug dealing business, contra congressional intent, these punitive mandatory sentences can be, and mostly are, applied to anyone arrested with the specified amount of drugs to trigger the mandatory sentence – regardless of the defendant’s role within a drug organization.

This is a significant flaw in the legislation; using drug quantity as a determiner is ineffective because high-level individuals at the top of drug dealing enterprises rarely ever deal, handle, or are even in the same room as large quantities of drugs – as the actual day-to-day dealing of drugs is typically delegated to low-level street dealers.

As Judge Gleeson points out, the problem is evidenced by the fact that in 2011, “over 74% of crack defendants faced a mandatory minimum, . . . yet only 5.4% occupied an aggravating role of leader or manager of a drug business . . . .” It turns out, “that the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties.”

I’m glad to see Professor Berman open up his blog for Professor Kreit to discuss the critical issues of criminal justice and drug law policy that have been ignored far too often. I just received my copy of the casebook and look forward to digging through it, as well as Professor Kreit’s upcoming installments at Sentencing Law and Policy. After just a cursory glance, I can tell this casebook will not only serve as a valuable tool for law students, but for practitioners as well. As a soon-to-be criminal lawyer, I know I’ll be using it.

%d bloggers like this: