U.S. Sentencing Commission approves retroactive crack sentencing guidelines

On June 30, 2011, the U.S. Sentencing Commission unanimously adopted proposed sentencing guidelines that, effective Nov. 1, 2011, would allow prisoners to petition to modify their sentences. This is good news because some law enforcement groups had opposed this move. This is good news because perhaps 12,000 current federal prisoners may get their very long sentences reduced by an average of three years! This is good news because this is one of the biggest steps that the Sentencing Commission could take.

But, sadly, this step is only a small step in the longer journey for justice. First of all, this change will have no effect on the statutory mandatory minimums. Those who are serving a 10 year sentence because they were convicted of distributing, or conspiring to distribute 50+ grams of crack cocaine, will still have to serve the 10 years. Even though the new mandatory minimum sentence starts at 280 grams, because Congress did not make the Fair Sentencing Act of 2010 retroactive, the statutory minimum sentence in effect at the time of the defendant's crime is not going to change. Congress may have recognized that sentences of 10 years for less than 280 grams were unjust, by contemporary standards, by changing the law but they did nothing about those cases already decided over the previous 24 years.

But the second, and bigger, point is that the enormous focus on the sentencing of crack cocaine cases has been tragically misplaced, because it has focused on the wrong "end" of the justice system. The heart of the problem is that U.S. Attorney offices around the country bring small-scale cocaine cases in federal courts where they can get extraordinarily harsh sentences because of the small quantity triggers (now 28 grams and 280 grams for minimum sentences of 5 and 10-years). A boatload of cocaine seized by the Coast Guard might contain one ton, that is, 1,000,000 grams! The team that organized that shipment is a large scale dealer and they belong in federal court. Small cases do not belong in federal court.

The thousands of small cases brought every year mean that DEA agents and other federal investigators and prosecutors are not working on major cases. Sadly, it seems everybody in Justice and Congress is satisfied with the handful of agents bringing a handful of major cases in a year.

Major cases are vitally important because the people involved are often involved in assassinations of police and political leaders, wholesale bribery and corruption, extensive money laundering, fabulous tax evasion and so forth. But federal agents are unavailable to do those cases when they are busy with thousands of neighborhood crack dealers (and their girl friends) -- dealers who are easily, quickly, and usually replaced soon after their arrests.

People concerned about the "injustice" of the excessively long "crack" sentences should focus their outrage on the U.S. Justice Department which tolerates wasting expensive federal anti-crime resources on unimportant criminals, not be outraged at the federal judges or the sentencing guidelines that have nothing to do with case selection.

Many fewer that one in a hundred American "criminals" go to federal court. The offenders who go to federal court should be those who commit terribly serious crimes. The federal cases should be those involving very complex schemes that require the smartest attorneys and investigators to unravel, and those that have nationwide or international implications.

A guy selling crack cocaine out of a local crack house does not belong in federal court. The crack was probably made in the back room of the crack house or a few blocks away. Local cases belong in local courts. Even the guy who is the biggest crack dealer in the city typically does not belong in federal court. If the Justice Department succeeded in shutting down the operators of the international cocaine pipeline that has been keeping every crack house in America fully supplied then it might be appropriate for it to work on totally local cases.

I commend the U.S. Sentencing Commission for having the courage to make the changes that it can in the face of continued political grandstanding about "crack dealers." Today, a lot of minor criminals selected almost at random by the Justice Department and now serving inordinately long sentences will have a shot at getting home to their families a few years sooner. This is not trivial.

But I fear that too many justice advocates and legal commentators will behave as though this is a problem of the justice system that is now largely solved.

In a way, this is kind of the like distinguishing those who are hurt and those who are responsible in the current financial crisis that has been going on for the past three years. American families lost $9 trillion in wealth in the lost value in their homes, pension funds, investments, etc. Tens of millions of Americans lost their jobs and are still out of work. So unable to pay bills, they are getting evicted from apartments and homes, and being foreclosed on. But the leaders and players in the financial industry who were responsible for the decisions that brought about the calamity are getting record bonuses and salaries, and not being brought into court to fight for their life savings.

Why does our political system not demand accountability from the powerful when they misbehave, but harshly punishes the the low-level people when they go bad?

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Thoughts on a "victory"

This morning at 11 a.m., President Obama signed S. 1789, the Fairness in Sentencing Act, in the Oval Office, reported by The Caucus blog at The New York Times. The House passed the bill on July 28 on a voice vote. I have been working for a bill on this subject since 1993.

This bill raises the quantities of crack cocaine that trigger the mandatory minimum sentences for trafficking enacted in 1986 (from 5 grams to 28 grams and from 50 grams to 280 grams) creating a ratio of cocaine to crack of 18 to 1 instead of 100 to 1. The Act also repeals a mandatory minimum sentence for simple possession of 5 grams of crack or more -- enacted in 1988, provides various directives to the U.S. Sentencing Commission regarding drug sentencing, calls for a review of the effectiveness of drug courts, and raises the fines that can be imposed for the crime of drug trafficking.

In 1986, I was counsel to the House Judiciary Committee, and played a key role in the creation of that law. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 500 grams of powder cocaine (a little more than a pound) or 5 grams of crack cocaine (a very small amount -- the weight of 5 packs of artificial sweetener or one nickel must be sentenced to at least 5 years (up to 40 years) in Federal prison. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 5000 grams (5 kilograms or about 12 pounds) of powder cocaine or 50 grams of crack cocaine (the weight of a typical candy bar) must be sentenced to at least 10 years (up to life imprisonment) in Federal prison. These sentences are triggered by different quantities for other drugs -- all relatively small quantities. In 1986, the federal prisons held 36,000 prisoners. This week there are over 211,000 federal prisoners, more than half of them there on drug charges, and a large fraction serving unjustly long sentences. Over 70 percent of the prisoners are serving sentences longer than 5 years.

The quantities that trigger mandatory sentences are mistakenly small. Contrary to the intent of Congress, they do not indicate that a trafficker is a major drug trafficker. A major cocaine trafficker organizes transactions in hundreds and thousands of kilos. One thousand kilos is one metric ton, which equals one million grams. The U.S. consumes about 300 metric tons of cocaine annually.

Unfortunately, year after year about 80 percent of the federal crack cocaine defendants are African-American. About 8 or 9 percent of the defendants are white. The racial disproportionality is utterly unwarranted.

Perhaps just as scandalous is that most federal drug defendants are neighborhood-level dealers, not the national level or international level dealers who should be the primary target of federal drug enforcement efforts. If most federal drug convicts were trafficking in hundreds or thousands of kilos, and operating at a very high level, no one would concerned about their race or ethnicity.

I have been working to repeal or reform the mandatory minimums I helped write since I left the Judiciary Committee in January 1989. I helped found Families Against Mandatory Minimums in 1991. In 1993, I wrote a draft of legislation to eliminate separate crack cocaine quantities so that at least crack and powder would be equal at the 500 and 5000 gram levels that was introduced by U.S. Rep. Charles Rangel (D-NY), the former Chairman of the House Select Committee on Narcotics Abuse and Control. He called the bill the "Crack Cocaine Equitable Sentencing Act." With that title, I thought it would never pass, and it never did.

Beginning in 2005, the Open Society Policy Center assembled a coalition that I joined along with Drug Policy Alliance, the ACLU, the Sentencing Project, Families Against Mandatory Minimum Sentences, the Methodist General Board of Church and Society, the National Association of Criminal Defense Lawyers, the NAACP, the Leadership Conference on Civil Rights, and many other groups including SSDP and LEAP, to push Congress to end the crack - powder disparity. For the coalition I drafted a bill I called the "Cocaine Kingpin Punishment Act" which eliminated the crack provisions and raised the fines that could be imposed against convicted traffickers.

In 2007, Sen. Joe Biden introduced a bill, S. 1711, with "cocaine kingpin" in the title and included some of the provisions of my draft. Senators Barack Obama and Hilary Clinton cosponsored his bill. There was a day of hearings on the bill, but no action. Rep. Sheila Jackson Lee introduced a companion bill in the House.

In 2009, Senator Richard Durbin (D-IL) introduced a revision of the Biden bill, now called the Fairness in Sentencing Act. He worked with Senators Jeff Sessions (R-AL) and Orrin Hatch (R-UT), who had expressed concern about the racial disparity in cocaine prosecutions, and what Sen. Hatch referred to as the "girl friend problem" of sentencing co-conspirators like principals. With Sessions and Hatch, Durbin was able to reach the compromise on 28 and 280 grams (18 to 1) and get it out of the Senate Judiciary Committee and out of the Senate on a voice vote.

I was very pessimistic that the House Democratic Leadership would bring the bill to the floor and risk a recorded vote. But House Majority Whip James Clyburn (D-SC) worked to get it to the floor. I believed that House Republicans would resist the bill as "soft on drugs," as Rep. Lamar Smith (R-TX), the ranking Republican on the Judiciary Committee, argued on the floor.

But I was wrong. The bill was brought to the floor, and Representatives James Sensenbrenner (R-WI) and Dan Lungren (R-CA) supported the bill. There was no record vote.

Since I did not think the bill would pass, and it did, my thoughts are that this is the best our political system can produce right now.

Republican support creates a political opening for President Obama to begin to issue orders commuting some sentences that are especially unjust -- if the Pardon Attorneys office is reorganized and expanded.

Ideally the Justice Department will begin more careful oversight of U.S. Attorney offices to assure that they focus on high level cases.

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One-third of cocaine tainted, DoJ reports; may lead to immune suppression and infection

An obscure graph in an obscure report in DEA's scientific publication, the Microgram, reports that in October 2008, thirty percent of the samples of seized cocaine were tainted with levamisole, a medication used to de-worm animals -- dogs and cats, even hogs. This is a ten-fold increase since October 2007.



The report shows that the tainting had been seen in a small fraction of samples for many years but has rapidly grown in the past year in samples seized in the United States. The State of Delaware issued an advisory about this in September 2005!

The New Mexico Department of Health is warning the public that an unusually high incidence of agranulocytosis (a condition of a suppressed immune system) has been reported in parts of the state, Arizona, and Canada, which may be associated with use of cocaine tainted by levamisole.

The symptoms of agranulocytosis include:
• Worsening or persistent sore throat
• Persistent or recurrent fever
• Swollen glands
• Painful sores (mouth, anal)
• Skin infection, especially if associated with painful swelling
• Thrush (a white fungal coating of the mouth, tongue or throat)
• Other unusual infections.
Persons with these symptoms should seek medical care as soon as possible.

If the cocaine being seized by the DEA in the U.S. is representative of the cocaine being distributed, then it is likely that there are many more cases of agranulocytosis than are being reported. This sounds like a potential public health emergency.
On March 18, 2009, the Erie County, New York Health Department issued a warning about levamisole contamination.

Here is a March 5 report from Denver. And the chief health officer of Nunavut, the new province in the north of Canada issued a warning.

Health officials in British Columbia, Canada are investigating a number of cases of agranulocytosis in people who use cocaine. They have also identified levamisole in one of their cases. Here's a report on 10 persons in British Columbia and the official public health warning there.

At the end of November 2008, public health officials in Alberta, Canada identified seven cases.

New York's Health Department has this undated warning.
[updated March 23, 2009, 4:02 pm EDST]

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"Legal Drugs Kill Far More Than Illegal, Florida Says"

In Florida last year, there were 2,328 deaths due to "strong painkillers" like Vicodin(R) and Oxycontin(R), 743 deaths due to benzodiazepine-class drugs like Xanax(R) and Valium(R). Cocaine caused 843 deaths, methamphetamine caused 25 deaths, heroin caused 93 deaths, and marijuana zero deaths, according to the 2007 report by the Florida Medical Examiners Commission reported in The New York Times ("Legal Drugs Kill Far More Than Illegal, Florida Says," p. A10, June 14, 2008). "Drugs Identified in Deceased Persons by Florida Medical Examiners, 2007 Report" is 43 pages long.

Sounds like a public health problem, but the Times' Damien Cave can only quote law enforcement officials such as Sergeant Lisa McElhaney, in the Broward County Sheriff's Office, for her insight: "The abuse has reached epidemic proportions. It's just explosive."

However we should give the Times' Damien Cave a great deal of credit for taking the initiative to put the fact that marijuana caused zero deaths in the middle of story. That fact is obtained from the medical examiners' report only by deduction. It was not stated as a finding or a conclusion.

It is worth noting that the number of cocaine deaths has grown almost continuously from 821 in 1993 to 2179 in 2007.

Deaths among older drug users; and the political misrepresentation of who is dying
It is also significant that in 2007 the number of persons found with lethal levels of cocaine in their body under age 18 was 4, ages 18 to 25 was 96, and among persons older than 35 was 582.

Consider this fact and the mantra of politicians defending unjust laws such a mandatory minimums. This is Senator Hatch on PBS Frontline's "Snitch" in 1999:

Sen. ORRIN HATCH (R), Utah: Well, we found- the reason why we went to mandatory minimums is because of these soft-on-crime judges that we have in this society, judges who just will not get tough on crime, get tough especially on pushers of drugs that are killing our youth. And so that's why the mandatory minimums, so that we set some reasonable standards within which judges have to rule, rather than allowing them to just put people out on probation who otherwise are killing our kids.

The consequence of social misclassification of the problem
In covering this report, could the reporter have asked doctors, public health specialists or health educators about the meaning of such data and what could be done about it? No.

Michael Aldrich, Ph.D., explained very cogently -- about four years ago in San Francisco -- that for the society a tragic consequence of misclassifying the "problem" of drug misuse as a criminal problem has meant that for decades we have consulted the wrong "experts," such as police sergeants. In general, our police "drug experts" are untrained, unqualified, and fundamentally ignorant about the causes of these kinds of deaths and the various means that a public health expert might suggest to address the problem.

What could we do to reduce these deaths?
I'm not a doctor or a public health expert. But I would ask such professionals, "Is it possible that we could save lives and prevent some of these deaths by educating drug users on safer drug use practices?"

Could family practitioners talk with teenagers and young adults in a way that acknowledges that they might be using "legal" drugs socially and not medically, and that non judgmentally advises them about how to minimize the dangers? Not in the current drug paradigm. Such counsel would risk prosecution and loss of medical licenses for "sending an inconsistent, don't do drugs message."

When a physician prescribes Xanax or Oxycontin to a person, might it make sense for the physician to call in all the family members aged 14 and older to talk about the risks to family members and guests having such a drug sitting in a parental medicine cabinet?

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U.S. - Mexico Anti-Drug Blah Blah

Monday, U.S. and Mexican customs officials "unveiled a cooperative effort," to fight the "escalating levels of violence that have turned parts of Mexico into war zones and spread as far as North Texas," reports the Dallas Morning News. The headline: "U.S., Mexico launch unprecedented effort to disrupt cross-border weapons smuggling." (emphasis added).

Will Customs' (ICE) efforts to stop the flow of guns from the U.S. to Mexico be any more successful than the interdiction of cocaine, heroin, marijuana and methamphetamine from Mexico to the U.S.?

I have no confidence it will. What continues to strike me how the news media and Members of Congress remain blind to the incompetent and half-hearted nature of America's anti-drug effort. It is as though if they looked at how the money is being wasted by ICE, the DEA and the Justice Department by not doing what they are supposed to be doing, they might have to think about the logic of the effort, too.

Texas has four Federal judicial districts. Close to the border, we should expect that the federal drug investigators and prosecutors would be focused on the high-level trafficking organizations that operate along the Rio Grande.

Because of the racial disparity in the Federal government's cocaine prosecutions and the fact that so many of the crack defendants are minor participants in penny ante drug organizations, my July 2006 White Paper was successful in calling upon the Sentencing Commission to look at degree to which small scale cases dominate the federal investigations.

Thus there is interesting data that reveals the small quantities involved in Federal cocaine cases nationwide, compiled by the U.S. Sentencing Commission. The average weight of crack involved in a federal crack case (examining all of the 4,262 federal crack cases brought in FY 2006) was 51 grams. This is just one gram more than the 50 grams that trigger a mandatory minimum sentence of 10 years. How little is 51 grams? It is the weight of a common candy bar, nothing that a major dealer would waste their time with. It is too tiny an amount to make into a Federal case when cocaine is smuggled into the country by the metric ton (1,000,000 grams), that is, too tiny an amount if your head is screwed on right!

Shockingly, nationwide, 35.1 percent of all crack cases involve less than 25 grams.

In FY 2006, the federal prosecutors in Texas were largely wasting their time (and our money):
In Western Texas, there were 127 crack cases, 61 less than 25 grams -- 48.0 percent.
In Eastern Texas, there were 94 crack cases, 44 less than 25 grams -- 46.8 percent.
In Southern Texas, there were 70 crack cases, 31 less than 25 grams -- 44.3 percent.
In Northern Texas, there were 67 crack cases, 21, less than 25 grams -- 31.1 percent.

Remember, the State of Texas knows how to investigate, prosecute and punish drug dealers. They certainly can investigate and prosecute neighborhood crack dealers. And Texas has one of the largest prison systems in the United States, indeed one of the largest prison systems in the world.

Yet in FY 2006, federal prosecutors in Northern and Eastern Texas actually brought more crack cases than powder cocaine cases. They spent more time in federal court with candy bar crack cases than with Mexican cartel leaders. And that means that more minor players fill federal prison cells than cartel leaders. What a waste of the federal effort!

Unfortunately there is no comparable data for marijuana, heroin, and methamphetamine. We are unable to see whether ICE, the DEA and Justice Department are especially incompetent and wasteful fighting cocaine by focusing on local crack cases, or if this misfocus is the case with other major drugs of abuse.

Is it any wonder the violent Mexican cartels feel they can operate with impunity in Mexico, and the United States?

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