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The Right Kind of Sentencing Reform

Sentencing reform advocates often point out that reform proposals, although a dud at the national level, have been adopted by any number of states, including more conservative states like Texas and Georgia.

In Alabama, certainly a conservative state, the House just approved the kind of sentencing reform I can enthusiastically support.  It was adopted, I might add, by a unanimous vote, including the votes of all the African American legislators. Here's the story:

The Alabama House overwhelmingly approved a bill Tuesday that would create harsher penalties for possessing and dealing heroin and fentanyl.  

In a 100-0 vote, the lower chamber signed off on the legislation, which orders a one-year minimum prison term for possessing heroin or fentanyl -- an opiate cheaper but much more potent than heroin. The two drugs are commonly mixed by dealers because it allows them to stretch out the heroin into more doses....

Rep. Patricia Todd, D-Birmingham, said she recently lost a family member to a heroin and fentanyl overdose. Todd said there should be more education about the dangers of the cheaper and more powerful opiate, especially on college campuses. "I don't think many of us understand how more deadly fentanyl is than heroin," she said.


Is there reason to fear, Bill, that a person addicted to heroin in Alabama will now fear seeking treatment for this addiction because he/she could face at least a year in prison for simple possession?

I know you favor harsh mandatory prison sentences for drug dealers, Bill, but this new law seems to require mandatory prison time for a lot of drug users, no?

1. The prospect of harsher sentencing will provide an incentive for people to stay away from smack in the first place, thus reducing the number of those who become addicts. That is the optimal public health solution.

2. Addiction is one of the factors that a prosecutor may consider in deciding whether to bring a MM charge.

3. Do I take it from your comment that you don't have a problem with the MM for DEALERS? I ask because I have become wary of defense-oriented advocates using the atypical sympathetic case to unravel serious sentencing for everyone, everywhere. Thus I suspect you want to stick the addict's nose under the MM tent to bring it down for everyone, including the most avaricious pushers. Am I being too suspicious? I'll apologize if I am.

4. In the end, the best thing we can do for addicts is to prevent addiction to begin with, and we can help do that by drying up supply. Letting suppliers know that another line of work -- like a normal job -- is a wiser choice for them will help do that.

5. The fact that this passed 100-0 shows me that those on the ground, including in the poorest communities, have considered your objection but find it outweighed by the advantages of upping the punishment ante. I for one, being a law professor far removed from their situation, am leery to second guess their judgment.

A few quick responses:

1. I hope you are right that harsher sentencing encourages folks to desist, but sentencing laws have historically had relatively little impact on drug use patterns.

2. What legal basis justifies a prosecutor using addiction when deciding on charging practices among those indisputably guilty? I have always suspected that a whole array of extra-legal factors impact how prosecutors charge, but I find it especially interesting that a former drug prosecutor is so quick to suggest addiction is a significant charging factors.

3. I have a problem with all MMs because they turn prosecutorial charging powers into functional sentencing powers. But, as we have oft discussed, you think giving prosecutors this kind of sentencing power serves various important purposes, and I respect that view. But your endorsement of an MM for a drug user reinforces my fear that you see tough-and-tougher (and prosecutor controlled) punishment as always a good improvement to sentencing laws in just about every context.

4. Have we ever been successful in "drying up supply" of any drug in modern times? Especially given your DEA working history, I ask with the genuine hope that you can point me to examples in which we have through severe sentencing laws really dried up the supply of a drug. (I am aware that we seemed to have succeeded in drying up a certain supply source through tough treatment of "pill mills," but I sense that led to cartels starting to bring in more heroin -- and there is still a robust opioid pill black market, too.)

5. I share your commitment to wisely deferring to the judgment of local/state officials as to how best to deal with drug issues. Do you share my view that such wise deference ought also apply to state marijuana laws?

1. As sentences became more harsh, crime plummeted (by half). Was increased severity the whole cause? Nope. Was it a contributing cause? Yup. No serious person even disputes this.

2. You are an ironic source for opposition to the idea that prosecutors can show leniency in charging. In practically every other context, you are a strong PROponent of that same idea. And it is an historically accepted, and a good, idea. Some defendants should get waxed in charging and some should get a break. No rational person doubts this. As long as the breaks are not distributed based on prohibited (or immoral) criteria such as race or religion, prosecutors should, and will continue to, exercise the discretion the Constitution gives them.

3. So my suspicions were justified after all!!! You lead with the sympathetic, addicted defendant, but in fact you want to eliminate ALL mandatory minimums for ALL druggies, including the most menacing and avaricious traffickers.

Jack Weinstein must be smiling.

Under our Constitution, the prosecutor is free to charge whatever an objective, good faith evaluation of the evidence shows the defendant did. He is also free to charge less than that (or nothing at all, for example, when the defendant has a terminal disease and one month to live).

I don't see anything wrong with any of that. Do you? Could you cite a single case in our 200-plus year history that says good faith prosecutorial charging discretion is wrong?

4. "Have we ever been successful in 'drying up' supply of any drug in modern times?"

Yes. LSD. While I was at the DEA.

We have, in addition, tamped down on the supply of drugs, as shown indirectly but vividly by the huge drop-off in inner city violence over the last generation. As everyone in the field knows, the amount of violence you get in the inner cities is closely tied to the drug trade.

You are correct, however, that pill mill doctors are a problem. Under Jeff Sessions, they are about to get a greeting card. I'm sure defense lawyers will rise up in righteous anger, though, about prosecutors' "interference with the doctor-patient relationship."

I really do love the defense bar. You can't make this stuff up.

5. I have no problem with states doing whatever they want with their own drug laws -- so long as they honor and defer to the federal Constitution, which continues to make federal law supreme. George Wallace, among others, didn't care for that view of things, but he lost and my side won, and that's the way it's going to stay.

1. Rates of tobacco use as a result of public health campaigns have dripped MUCH MUCH more than rates of drug use as a result of harsh sentencing: https://www.drugabuse.gov/publications/drugfacts/nationwide-trends. Is this not modern proof that, with respect to drug use, public health efforts can be MUCH more effective that harsh sentencing? Tellingly, your comment speaks of crime, not drug use.

2 + 3. I do not oppose prosecutors showing leniency and having broad discretion, but I hope you recognize and concede that this prosecutorial power is a form of "rule by men" rather than "rule by law." And I view this lawless (and hidden) power of leniency and discretion to be most worrisome when fixed MM sentences are in play. As usual, Bill, the former prosecutor is quick to embrace giving prosecutors lawless (and hidden) power. We have been through this before, and that is why I call you a big govt conservative --- you like for certain government official (prosecutors) to have more and more power over individuals subject to less and less legal constraints or transparency. I prefer government power to be constrained and to be more transparent, ergo my disaffinity for all MMs.

4. Kudos for your work on the LSD front. I hope you are right that we have "tamped down" supply of other drugs, but the data from 1998 to 2008 suggests otherwise: http://www.economist.com/node/18772646

5. My question, Bill, is not whether you think states should honor/defer to federal law, but rather whether you think federal officials should honor/defer to state officials' views on the best drug policies for their states. Four Govs have written to AG Sessions to urge him to preserve the Cole Memo policies on federal marijuana enforcement. Do you think AG Sessions should resist second guessing their judgment about the best policies for their states?

1. I'm all for education, and pushed (somewhat successfully) when I was at DEA for Congressional funding for it. But I want it in addition to, not as a substitute for, enforcement. The combination will succeed better than either alone.

2 + 3. Discretion, whether exercised by prosecutors, judges, administrative officers, police or anyone else is, by definition and very strictly speaking, a supplement to law. But it can't and shouldn't be avoided; there is simply no social system that can operate sensibly without it.

Again: I see nothing wrong, and you point to nothing wrong, with a prosecutorial standard for charging to be to indict for what the evidence SHOWS THE DEFENDANT ACTUALLY DID. A prosecutor violates no standard known to me when he does that.

He can't properly go above it, no. He can properly go below and (and prosecutors routinely do) for legitimate reasons, such as the defendant's minor prior record or genuine (as opposed to faked) contrition.

As the nation's No. 1 prosecutor found out recently, she had PLENTY of constraints. They're just not the constraints you prefer, which is, e.g., to give criminals an indirect say in how they can be charged by letting Jack Weinstein and his pals in on plea negotiations. Wisely, this was and remains against the rules.

Instead, the constraint that got enforced on Ms. Lynch was that the country elected a different boss who then fired her. That is the mother of all constraints.

It did this, moreover, in part on the very, very publicly visible disagreements Trump and Clinton had about drugs, crime, and Black Lives Matter.

Thus the on-the-ground reality, only recently illustrated, is that the public VERY MUCH has a choice about what sort of criminal justice policies it will demand from prosecutors. The public chose to reject leniency and binge commutations in favor of -- how shall I say this? -- MAKE AMERICA SAFE AGAIN.

One can debate whether this was a wise choice, but one cannot debate that it WAS a choice, and, that as a result, the electorate is already seeing major changes in prosecution policy.

I imagine the (relatively few) AUSA's who agreed with Loretta Lynch are feeling quite constrained these days.

4 + 5. I have no direct data on current drug use, but I doubt data from the last century into 2008 tell us much. We have much less violence now than we had in that period, which strongly suggests to me that we have less drug activity.

I think the feds should give due regard to state law EXCEPT WHEN IT IS INCONSISTENT with federal law. It should go without saying that the first obligation of a federal prosecutor is to enforce federal law. Congress has had decades, under the leadership of both parties, to change federal drug law in the direction of what some of the states are doing. It declined to do so. Instead, it has kept federal law where it is.

That being the case, federal prosecutors are not merely free to, they are BOUND TO, put federal law first.

P.S. This is merely an analog of my thinking about the Boston Marathon capital prosecution by the feds, even though Massachusetts law rejects the death penalty.

That's all well and good, but Massachusetts is part of the United States; federal jurisdiction obtains; and now, as a result, and may God be praised, Mr. Tsarnaev is (eventually) headed to the injection table.

Bill, as many like to say (including Kent), you can have your own opinions, but not your own data.

1. ON ELECTIONS: you conveniently forget that HRC secured nearly 3 million more votes than Trump nationwide. Trump was duly and lawfully elected thanks to the distribution of voters, but it is flat out WRONG to assert that a majority of "the public" or "the electorate" embraced the Trump approach to "drugs, crime, and Black Lives Matter."

Indeed, speaking of the view of "the public" or "the electorate" on drugs and crime, ballot initiatives for reform/leniency prevailed in nearly every state on nearly every issue except the death penalty in 2016. Votes for "leniency" involving drug crimes were notably strong even in states Trump won like Oklahoma and Florida and Arkansas.

I know you like to believe your tough-on-crime positions, Bill, are representative of a large silent majority, but recent election results make that position very hard to support. Thanks to gerrymandering and other factors, it is true that tough-on-crime politicians and political rhetoric can still be quite successful. But the "on-the-ground reality" of actual votes in 2012, 2014 and 2016 tell a much different story than the one you cling to. (Except, critically, with respect to the death penalty. On that one, even in blue states like California, the abolitionist position is for now still a minority one.)

2. ON DRUG USE: This debate is about drug use, and you continue to fail to provide any data to support your contention that tough sentencing policies help drive down drug use. For a former DEA lawyer, I find this so very disappointing and so very telling. You obviously think threatening drug users with significant prison terms is justified on its own terms so you need not even have to worry about determining if it actually works to reduce drug use. And thus again the big government conceit: what big costly government wants to do, so says the big govt support, is justified just because we say so, and thus no need to check if it actually serves the claimed goals of big government. (The next move, of course, is to respond to data showing that this "war on _____" is not working by saying we need more money and programming and hires to make it work.)

Like so many of our conversations here, Bill, we get back to an essential disagreement based in your willingness and eagerness to give prosecutors more and more power (esp. fed prosecutors), whereas I am skeptical of ever increasing the already huge (lawless and hidden) powers of executive officials.

Very quickly, since I have to get going for dinner.

1. No matter who "really won" the election, your rebuttal does not challenge my point that prosecutors work under the blockbuster constraint of getting booted out of office. That is far more of a constraint than, for example, unelected federal judges. It is simply not the case that prosecutors are can do whatever they want with no check, nor is it the case that their work is invisible. And all that is omitting the biggest constraint of all, to wit, if the jury doesn't unanimously agree, they can take all their charges and all their discretion and send them to the moon.

Speaking of which.............you still haven't told me what's wrong with charging the defendant with what he actually did. I'm still curious.

2. Nor do you dispute that cabined discretion is both inevitable and desirable.

3. Nor do you furnish any case in our 200-plus year history holding or even suggesting that the current degree of prosecutorial discretion in charging offends the Constitution.

4. I haven't been with the DEA for ten years; I'm not a criminologist; and (to be honest) I haven't done the research I ould about levels of drug use.

I can, however, spot a dodge when I see one. The purpose of punishing drug dealing is not simply to deter it, although that is certainly one purpose. It is also to punish it because it is harmful and wrong. The harms of drugs I hardly need document in the middle of a heroin overdose crisis that even Obama had to admit; and the wrongfulness of exploiting ignorance, dependency, misery and addiction simply for greed is too obvious to elaborate. It is also the reason that, in more than four decades, your side has made next to no headway in Congress.

This did not happen because Nancy Pelosi and Harry Reid and Bill Clinton are fascists. It happened because there is a very durable consensus in the country (although admittedly not in academia, the ACLU or M-13) that hard drugs are extremely destructive and should be vigorously suppressed.

5. I'm mystified why you keep on talking about big government. I have opposed it for years, and I keep losing. President Trump is, very obviously, no fan of reducing big government and neither was Hillary. Some battles I have won. The battle against big government is one I have lost. I have to live with it and so do you.

Not that it makes any difference in this debate. It's not that you actually want the the government to spend less. You just want to spend it on different stuff -- more for indigent defense, rehab, education, counseling, family re-unification, psychological services, and more.

As it happens, I too support some of that. The difference is that I also support the things that have proved they work: limiting the running room of criminals-are-wonderful judges like Jack Weinstein, and increased incarceration.

We're headed back in the wrong direction and it's showing up in the national crime statistics. This is a big mistake, and it's going to cost lives, especially black ones.

We need to remember what works. And, from the Sixties and Seventies, what fails.

1. Your point about a jury check, Bill, provides yet another reason why MMs are pernicious: juries do not hear about sentencing consequences, so how can a jury check charging decisions when not informed? And I never said there is anything wrong with charging a defendant for what he did -- the problem is having prosecutors decide sentences via (lawless and hidden) charging decisions rather than having judges decide sentences at sentencing subject to legal rules and in open court.

2. One way to "cabin" the sentencing "discretion" of prosecutors is to not have their charges carry precise sentencing consequences.

3. You always love in these policy debates, Bill, to cite the Constitution because, as gets tiresomely obvious, you plainly do not have strong policy arguments beyond, fundamentally, "I like/want for prosecutors to have lots of discretionary power."

4. At issue here, Bill, is not "drug dealing" it is drug possession, and whether mere possession of hard drugs should carry a mandatory minimum of one year in prison. You are the one dodging by failing to address that core issue in a post that extols legislation providing a "one-year minimum prison term for possessing heroin." I am trying to stay on topic as to whether that increase in prosecutorial power and government coercion "works." You have talked about everything but that. And your dodges and straw men --- who called anyone a facist? --- reveal yet again that there is nothing behind your support of this particular law other than your blind belief that we can never be too punitive with respect to behavior that you disfavor.

5. I share you interest in "what works" and "what fails" and 40+ years of a drug war suggest that AS TO DRUG USE we have been failing with punitive approaches. You have failed to engage with this data --- which is distinct from violent crime data --- and so if you really cared about "what works" you would not extol this Alabama law without looking at research about levels of drug use. But, like most government officials past and present, for you ideology comes first, evidence second. And your toughness ideology comes through again and again. That is fine to put ideology ahead of data, but admit that it what you are really doing here, Bill.

I hope you had a nice dinner. I grilled some chicken sausages for the family tonight.

Three quick points.

1) Doug, I pass through Columbus twice per week on my way up to the Akron area and back for work. If you need, I can stop by your office with a dictionary because "lawless" just does not mean what you think it means.

2) Bill is correct about deterrence. It is not even debatable. We have known for at least a couple of hundred years that the more you punish an action, the less you get of the action. Admittedly, this does not work as well with addicts whose physical addiction makes them ignore consequences and other factors may hide the deterrence, but the thought that increased punishment does not prevent some from ever trying hard drugs is absurd. Don't engage in a perfectionist fallacy.

3) You can grind chicken but it will never be sausage! ;-)


1. I use the term "lawless" here to mean "not subject to control or influence by formal legal doctrines and rules." Judge Marvin Frankel used this term "lawless" to describe federal sentencing before modern reform, and I use the term in a similar vein. So I call prosecutorial charging discretion "lawless" because there are no formal legal doctrines or rules which control charging decisions --- there are certainly plenty of political and practical factors that influence how prosecutors decide to charge, but very little formal law.

I recognize that the law provides that criminal charges must be supported by probable cause to believe a statute has been violated. So formal law does, in this way, place some formal limits on prosecutorial charging decisions. But, especially for drug crimes, when stats show there are likely thousands of potential defendants in every jurisdiction violating the law every day, it is hard to find how the law (as opposed to politics or practicalities) actually operates to constrain who a prosecutors seeks to criminally charge. That strikes me as a kind of "lawless" situation, though I welcome you providing an adjective that better describes my concerns about prosecutorial powers not being subject to formal legal constraints in this situation.

2. I do not dispute what might be called "classic deterrence," but lots of modern behavioral research shows that the swiftness and certainty matters a lot more than severity in maximizing deterrence. There is also considerable evidence that people are more likely to comply with laws that they respect and believe are fairly administered, and MMs are rarely respected and rarely perceived to be evenly administered.

I am not here seeking to engage in a perfectionist fallacy, but rather better understand whether Bill (and perhaps others) have modern data to support the claim that the use of mandatory minimum prison terms for just possession of certain drugs is effective at reducing their use. Notably, in 2010, Congress repealed a 5-year MM for simple crack possession, and I have not seen any data that this this law before or after its repeal had any tangible impact on crack possession.

3. I am always grinding and always look like a sausage. ;-)

1) Perhaps it is my lack of legal training but I am just not certain of your point. Did you describe the process judges used to sentence criminals before MM's tied their hands somewhat as "lawless?" I do not see giving a prosecutor charging latitude as any more lawless than giving the judges the same latitude to sentence.

It appears to me that your concern is not towards any "lawlessness" but towards who has the discretion (prosecutors or judges). I am curious as to how you would legally (without infringing on the executive branch's responsibility to bring charges against a citizen) take the system out of lawlessness. Would we even want to? Would this include denying the prosecutor the right to exercise discretion in undercharging a criminal or just when he decides to go hard on a guy?

2) You state: "I do not dispute what might be called "classic deterrence," but lots of modern behavioral research shows that the swiftness and certainty matters a lot more than severity in maximizing deterrence."

A) None of which shows that there is no "classic deterrence." That other things may end up being in totality more important is not an argument against the effectiveness of deterrence. B) If you are being honest with yourself, you would admit that the same people who are denying/ignoring classic deterrence are the same ones doing everything in their power to undermine "swiftness" and "certainty" as well. You kind of undermine your own position. Sentencing "reform" that weakens the current laws will bring less certainty, swiftness, and necessarily increase drug use, if we use your logic.

You stated: "I am not here seeking to engage in a perfectionist fallacy, but rather better understand whether Bill (and perhaps others) have modern data to support the claim that the use of mandatory minimum prison terms for just possession of certain drugs is effective at reducing their use. Notably, in 2010, Congress repealed a 5-year MM for simple crack possession, and I have not seen any data that this this law before or after its repeal had any tangible impact on crack possession."

Which is why social science is often useless with such complex topics. Typical "human nature" studies (e.g. classic deterrence) are much more revealing. There is so much unaccounted for in a study about crack MMs, one can find whatever he wants in it. For example,

What percentage of people even know about the repeal? (I bet very low, under 5 percent)

Did the researchers get stats for how many people tried crack for the first time before repeal and after? Or, did they just look at arrests which could go up or down for hundreds of reasons?

In the end, crack usage could have gone down after repeal AND the higher MMs before repeal were a deterrent. Instead of a 2% drop, maybe it would have dropped 7% with the MMs still in place. We can never know. What we DO know is that all organisms respond to punishment the same way and try to avoid it. Although some will surely avoid it in ways that still include doing drugs, we know with absolute certainty that some will choose to not use drugs because of punishment.

3) I am sure you are nothing compared to Bill at the beach in his bathing suit! :-)

1. You got it, Tarls, sentencing before modern reforms was "lawless" and the development of sentencing law in the forms of sentencing guidelines and other statutory sentencing instructions has brought valuable and needed law to judicial sentencing decision-making --- though some of this "law" could be greatly improved (e.g., federal child porn sentencing is a statutory/guideline mess, and I think many drug MMs are too long based on only drug quantities).

And even when there was not sentencing "law," at least sentencing decisions were being made in open court by a neutral official after open input from the parties. Prosecutorial charging decisions, then and now, are not subject to any legal standards AND it gets made behind closed doors by a partisan decision-maker. I share your view that it could be very hard to take the modern charging system "out of lawlessness." But that is exactly why I worry about having charging decisions determine not just the charges but also fixed sentencing outcomes. Because it may be unavoidable that charging decisions are, as I use the term, "lawless," I do not want too much turning on this initial hidden part of the CJ process. (The federal CP cases are the great example of my concerns, where prosecutors can charge anyone with a few images on their computer with either possession (with no MM) or receipt (with a 5 year MM).)

2. I agree that there are folks who do no want certain or swift punishment for drug offenders anymore than they want such punishment to be severe. Put simply, some folks think it unjust to punish persons for drug use no matter its possible deterrent effect.

I tend to be a consequentialist, so I do not worry much about claims it is unjust to punish drug users (or anyone else). Rather I fear, as the history of alcohol Prohibition suggests, that the harmful consequences of severe prohibition may prove greater than any deterrence benefits. This is why my back-and-forth with Bill kept asking for evidence to support the notion that a severe punishment will in fact reduce illegal drug use. The concern I have is that, even as enhanced punishment means "some will choose to not use drugs because of punishment," it could also mean some others will see new enhanced opportunities in the black market and many others will not seek needed treatment for fear of criminal punishment.

In light of the severity of the opioid epidemic, I am growing ever more willing to give severe punishments a try in this space. But I want to "run the numbers" before being eager to give prosecutors extra power in this space.

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