I've often said that Heather Mac Donald is the best in the business for analyzing policy about police practices and sentencing. She proves it again in her May 25 piece from the Wall Street Journal. I'll give a three paragraph teaser:
No one who gets caught smoking a joint is going to be implicated by Mr. Sessions's order [requiring prosecutors ordinarily to charge the most serious readily provable offense]. The number of federal convictions for simple possession is negligible: only 198 in 2015. Most of those were plea-bargained down from trafficking charges, usually of marijuana. Last year the median weight of marijuana possessed by those convicted of simple possession was 48.5 pounds. To trigger a mandatory penalty for marijuana trafficking, a dealer would need to be caught with more than 2,200 pounds of cannabis.
[T]he idea that Mr. Sessions's memo will exacerbate racial disparities in prison does not stand up to the facts. Drug enforcement is not the cause of those disparities. In 2014, 37.4% of state and federal prisoners were black. If all drug prisoners--who are virtually all dealers--had been released, the share of black prisoners would have dropped to 37.2%. What truly causes racial disparities in incarceration is racial disparities in violent crime.
Likewise, it is America's higher violent-crime rates overall, not drug enforcement, that cause the country's higher incarceration rates compared with other Western industrialized countries. The U.S. homicide rate is seven times the average of 21 Western developed nations plus Japan; the U.S. gun homicide rate is 19.5 times that average. Americans ages 15 to 24 kill with guns at nearly 43 times the rate of their counterparts in those same industrialized nations.
Bill, as you surely know, the Sessions Memo only directly impacts federal prosecutions, and the feds rarely prosecute traditional violent crimes, and the the Sessions Memo has nothing to do with 99% of homicide prosecutions or with who is in state prisons. To discuss state prison populations or homicide rates as a justification/defense for a new federal charging memo is, to parrot a great Scalia phrase, like comparing chalk and cheese.
Staying on point with federal drug prosecutions, the most recent BJS study of FEDERAL drug prisoners shows 76% are black and latino, https://www.bjs.gov/content/pub/pdf/dofp12.pdf, and thus it is fair for those concerned about racial justice to be concerned about stepped up federal prosecution of drug crimes. (Though there is reason to believe, circa 2017, that the racial patterns may be different if/when heroin becomes a bigger focus than crack/cocaine in the federal caseload.)
I say all this not to dispute the importance of homicide rates or state prison populations in a broader assessment of our national CJ system. But the Sessions Memo is about the unique federal system and what you have quoted above seems to obfuscate that important reality, not clarify it. (Perhaps the rest of the WSJ piece is more precise and sound, but I could not get to it behind the pay-wall.)
1. I read and re-read your comment and couldn't find anyplace where it contradicts anything specific I said in my post.
2. "...the most recent BJS study of FEDERAL drug prisoners shows 76% are black and latino, https://www.bjs.gov/content/pub/pdf/dofp12.pdf, and thus it is fair for those concerned about racial justice to be concerned about stepped up federal prosecution of drug crimes."
a. I don't care a whit about what the prison population looks like. I also don't care about whether they're young or old, and I don't care if they're male or female. I care about what their behavior is, period.
b. As I said in one of my recent NPR appearances, focusing solely on readily provable BEHAVIOR has the natural effect of FIGHTING, not exacerbating, any risk of prosecuting people because of what they look like.
c. If blacks (or young people or men) want to appear less in the prison population, it's easy: Abide by the law. If you do, have a nice day. If you don't, you've assumed the risk.
d. As you will see if you can find the article, Ms. Mac Donald points out early on that it was African Americans who demanded MM's, because the pestilence of drug dealing in their neighborhoods was not being taken seriously enough by white-dominated law enforcement.
3. I will be happy to give you as a gift a subscription to the WSJ. I'm being serious here, not snarky. It's one of the very few papers I regularly read.
I also hope you've read every one of the articles in the WaPo's brilliant and devastating series, "Second Chance City," which gives a startling portrait of what "sentencing reform" is actually going to look like if the country were foolish enough to adopt it.
Here's the link: https://www.washingtonpost.com/investigations/second-chance-law-for-young-criminals-puts-violent-offenders-back-on-dc-streets/2016/12/02/fcb56c74-8bc1-11e6-875e-2c1bfe943b66_story.html?utm_term=.0129719f19d7
Doug -- I re-read your comments again and am left with this very important question: Do you think the decision whether and what federal felony charges to bring should be influenced by the prospective defendant's race?
I would like a yes or no to that. Afterward, you are free -- indeed, you are amply welcome -- to explain at any length you wish, but I'd like to start with a yes or no.
Doug, you can never again pretend that your real concern is putting the bad people in prison and keeping the good ones out.
Not to mention, no real libertarian would imply that the racial make-up of our prison system is more important than the crimes committed. You know, individual responsibility and all that.
I don't think that is a fair characterization of what he said, Tarls.
Let's give the straw men the day off, folks. Heck, let's give them the year off.
Starting with your question, Bill, I do not think race should impact a federal prosecutor's charging decision, but I do think a lot of other factors should (and do).
Meanwhile, you praised Heather Mac Donald and then quoted paragraphs in which she defended a change in FEDERAL prosecutorial policies (the Sessions Memo) through reference to state prison statistics and crimes primarily prosecuted in the states. If that is an example of the "best in the business," it is pretty unimpressive. The Sessions Memo can be defended on many grounds, but citing state prison populations or homicide rates in defense of the Sessions Memo strikes me as misguided. That was my main point.
It is true that many minority communities called for the Rockfeller drug laws and federal MMs in the hope it would help fight crime in their communities. Prof James Forman has a new book discussing this reality at length. See Locking Up Our Own: Crime and Punishment in Black America: https://www.amazon.com/Locking-Up-Our-Own-Punishment/dp/0374189978. But notably, in the quoted section above, Heather Mac Donald does not say there is racial disparity in the commission of DRUG crimes (because it is so hard to measure this) even though there are distinctive racial patterns in prosecutions for different types of drugs, especially in the federal system. My cite to federal drug prisoner data was to document why those who worry that federal drug enforcement patterns have a racial skew --- perhaps because of a focus on urban areas --- would have reason to be especially concerned by stepped up federal prosecution of drug crimes.
That all said, I do not disagree that, absent the problem of wrongful convictions, one can always say that concerns with the CJ system in operation only impacts guilty people, so we ought not worry if some are punished too harshly or even if poorer people or those who exercise their right to go to trial are often punished more harshly than others. But for those who worry about excessive and harmful government in all forms, excessive and wasteful punishment of the guilty can serve as one kind of canary in the totalitarian coal mine.
Finally, and back to the topic of consensus I would love to forge, if Heather (and Bill and Tarls?) all think smoking a joint should not subject someone to federal prosecution AND favors the Sessions Memo calling for the full prosecution of all equally based on their behavior, should we all be calling for the reform of federal drug laws to make legal the smoking of a joint? There is a particular irony in defending the Sessions Memo and its call for honest and equal prosecution of federal drug crimes right after noting that almost nobody gets prosecuted for the most common and widespread federal drug crime.
I am not against individual responsibility, Tarls, but against the government looking to hold people criminally responsible and punishing them excessively and/or unequally for self-harming behaviors like drug use (or gun possession). And, for the record, excessive use of imprisonment (and excessive government more generally) bothers me much more than the particulars of who is excessively imprisoned.
With all due respect, I see exactly zero reason for race to be brought into this unless Doug feels that the racial make up of our prison system takes precedent over the crimes committed.
Bill seems to have interpreted his comment similarly.
Your most recent comment says, "I do not think race should impact a federal prosecutor's charging decision..."
Then why on earth did you write this 20 hours earlier: "[T]he most recent BJS study of FEDERAL drug prisoners shows 76% are black and latino, https://www.bjs.gov/content/pub/pdf/dofp12.pdf, and thus it is fair for those concerned about racial justice to be concerned about stepped up federal prosecution of drug crimes."?
"Meanwhile, you praised Heather Mac Donald and then quoted paragraphs in which she defended a change in FEDERAL prosecutorial policies (the Sessions Memo)..."
It's less than a change than a restoration of the policy that existed during the bulk of Obama's tenure (and the great bulk of the time before then going back at least 30 years).
I've had a problem finding where you opposed the same policy when Holder was using it. Could you quote the post where you did that?
"My cite to federal drug prisoner data was to document why those who worry that federal drug enforcement patterns have a racial skew --- perhaps because of a focus on urban areas --- would have reason to be especially concerned by stepped up federal prosecution of drug crimes."
For 80% of the last ten years, both the President and the Attorney General have been African American. Who do you think is responsible for the focus on urban areas that results in the present demographic makeup of the federal prison population?
"That all said, I do not disagree that, absent the problem of wrongful convictions, one can always say that concerns with the CJ system in operation only impacts guilty people, so we ought not worry if some are punished too harshly or even if poorer people or those who exercise their right to go to trial are often punished more harshly than others."
And here I thought Kent was encouraging us to stay away from straw men. Gosh darn.
P.S. Do you think people who falsely or fraudulently contest the case against them should be treated identically at sentencing with those who truthfully acknowledge guilt? Do you know of any judges who think that? Or any serious criminologists?
Doug -- We can certainly reduce the number of guilty people who get punished by keeping the jury unanimity requirement but increasing jury size to 24. Or 48. Or 75. Or 100.
Do you favor that?
Why not?
Oh..........cost considerations and allocation of finite resources.
Oh, well, yes, but you already knew that!
"I am not against individual responsibility, Tarls, but against the government looking to hold people criminally responsible and punishing them excessively and/or unequally for self-harming behaviors like drug use (or gun possession)."
Drug use is far from merely self-harming, but let's put that to one side for the moment and get to your main point.
Your side has been pushing for drug legalization for at least 40 years and losing the whole time. Do you think it might be time to move on from an argument that can't win Barack Obama or Bill Clinton or Ronald Reagan or George Bush or Paul Ryan or Nancy Pelosi? Do you think it might be time to examine the argument itself, rather than blaming the opposition for being stubborn?
The national opinion of drugs that ACTUALLY GET PROSECUTED BY THE FEDS is, in the present moment, exactly where it was in the ancient days when I was in law school: Pot is de facto legal and the rest of them should and do get harsh punishment.
Libertarianism was a laughingstock in the last election even with the major parties running the most unpopular candidates in the history of polling.
Time to move on.
So much here, let's see if I can explain/respond reasonably efficiently:
1. I do not know if 76% of federal drug offending is committed by blacks and latinos, but it seems unlikely. More to the point of my comment, I know that many concerned about racial justice strongly believe that drug offending is not so racially skewed which drives their belief/concern that tough federal drug laws have historically been applied in ways that lead to a racially skewed prison population. (And, notably, the US Sentencing Commission and current AG Jeff Sessions agreed that uniquely tough crack laws were for a long time part of the problem.) Ergo, these folks (those concerned about racial justice) are inclined to fear/believe --- and have a reasonable statistical reason to fear/believe --- that tougher application of federal drug laws leads to aggravated skewing of the racial composition of federal prison populations.
I am not speaking for on behalf of all persons concerned about racial justice, but I am trying to highlight that the federal prison data --- as well as the history of federal crack penalties and lots of other factors --- make it "fair for those concerned about racial justice to be concerned about stepped up federal prosecution of drug crimes." Is that statement really so hard for you to take at face value with making up suppositions about what I think about the impact or import of race in the operation of the federal criminal justice system?
2. The first Holder memo in 2010 changed some of the prior Ashcroft policies, and the 2013 follow up memo created a bigger shift in mandatory minimum charging practices. I have long been uncertain as to what serves as the best federal charging policies, but I have long been critical of long mandatory minimums in federal drug prosecutions. So I am generally in favor of policies that rely less on MMs, but a lot of the "real" stories of charging policies turn on how they get applied and enforced. Unfortunately, because charging is done behind closed doors with limited transparency --- unlike in-court sentencing --- it is hard to track this "real" story. And on my blog, Bill, I have criticized every administration for being opaque with prosecutorial data/decision-making. (And I a criticized Obama for not backing the JSVA and other like efforts to reduce the impact of federal MMs. Because I do not judge based on race, Obama and Holder/Lynch do not get a pass on my criticism because of their skin color.)
3. I am okay with a reasonable trial penalty, especially if/when a defendant false denies guilt under oath. But an HRW report found that, largely due to MMs, drug defendants who pled guilty got around four years and comparable defendants who went to trial got more than 11. A trial penalty of more than 250% undermines a commitment to trial rights, and that is the kind of problematic skew even among the guilty that I think merits criticism.
Do you think a person who puts the government to its proof should get 250% punishment than similar defendants? My sense is most judges and criminologists do not support such a huge trial penalty. I certain do not think someone who really believes in the importance of a jury trial right would favor this level of penalty.
(I also think we might usefully tell juries about sentencing ranges or have advisory jury sentencing decisions in cases that go to trial to help mitigate this extreme trial penalty, though getting rid of MMs would help a lot.)
4. Bill, it is true that people love big government, in large part because government is good at saying it will give out goodies and make others (or nobody) pay for them. That is why, even in a country that claims to love liberty, people vote for parties that promise more and more government. And any effort to unwind any part of government gets fierce opposition from those in government committed to doing good with other people's money. This was the case with alcohol Prohibition (see, e.g., Mabel Walker Willibrandt) and has likewise been the case with drug prohibition.
But marijuana seems to be turning a corner, though many government officials are still fighting hard to keep pot de jure illegal. And for someone who claims to be a fan of the rule of law and honesty in the federal system, I find it curious and troubling that you embrace such a lie in our federal drug laws dealing with the most widely used illegal drug.
Why not make pot DE JURE legal rather than have our nations drug laws life the biggest of big government lies? Could it be that Barack Obama or Bill Clinton or Ronald Reagan or George Bush or Paul Ryan or Nancy Pelosi are all just comfortable with drug laws lies only because it is good for government? I think a lot of folks could "move on" if we bring federal law de jure in line with what you call a de facto reality. Can I count you in to support ending federal marijuana prohibition if I encourage others to move on after this reform comes to pass?
The progressive canard that drug enforcement is skewed because white and black use drugs at the same rate is willfully blind to the difference in which the two groups market and sell their wares. Open air drug markets in urban areas have been the hallmark of black and latino drug dealing for the past 30 years. Does any reasonable person not think that this bravado will not come to the attention of law enforcement more readily?
Prof. Berman: "I find it curious and troubling that you embrace such a lie
in our federal drug laws dealing with the most widely used illegal drug.
Why not make pot DE JURE legal...?"
Here's 1 reason:
April 26, 2017 1:30 PM | Posted by CJLF Staff
More Fatal Car Crashes From Drugs Than Alcohol: "The story [Washington Post] also notes that the number of drivers who died in car crashes who tested positive for drugs went from 28% in 2005 to 43% in 2015. In Colorado the number of marijuana-related traffic deaths increased by 48% after the state legalized recreational use of the drug."
----- -----
Here's another [though I'm sure one would argue that illegality elsewhere created this]:
May 17, 2017 10:00 AM | Posted by CJLF Staff
"According to residents, legalized recreational marijuana has turned the Colorado town of Durango into a haven for homeless vagrants and panhandlers.
.. the picturesque mountain town on the New Mexico border has been overrun
with transients, panhandlers and homeless drug addicts. .. The city recently
settled a lawsuit with the ACLU allowing the homeless to panhandle. .. one
local said "..I don't feel safe here anymore."
1. The phrase, "Those concerned about racial justice" is a euphemism for "those who bellow the rote charge of RACISM at their opponents in order to silence them."
You don't do that, to your credit, but there are oodles of advocates on your side who do.
It works with some people. It doesn't work with me.
The huge majority of black people don't go to prison because the huge majority of black people obey the law. The minority who want to do their own thing have earned the treatment that a minority of white people doing their own thing have also earned.
Criminals of ANY color can wise up rather than try to make it someone else's problem. They get what their behavior earns.
2. I agree that executive branch operations, including charging decisions, should be as transparent as possible (given, that is, that some of the prospective defendant's gang buddies will try to assassinate your witnesses as soon as they find out who they are). When I was the Counselor at DEA, we routinely visited high schools to tell students about how the criminal justice system works (along with informing them of the dangers of drugs).
So we have an area of agreement here. At the same time, charging is going to remain where it has always been under the Constitution. The judges' power grab has failed.
Don't look at me, though. Judge Weinstein and Judge Persky did it in.
3. As to the plea bonus: I don't believe a HRW report is credible; HRW is a player, not a neutral referee. If I see some BJS statistics, that would be different. I'm also not buying the HRW version of what is a "comparable" offense. That has the same gauzy quality as the infamous "low level offender" -- specifics to be supplied later. Much later.
Again, I decline to join you in Blaming the System First for the routine and laudable fact that people who accept responsibility for their behavior should be treated more leniently than those who don't. Perhaps defendants and their counsel should look upon the enterprise more as an opportunity to come to terms with the truth and less as an opportunity to game the system. When they do so, dispositions tend to be more favorable to them.
4. You ask a fair question here and I'll give you a candid answer (although not a surprising one).
Pot is about as illegal as it should be, which, given its pharmacological qualities, is some but not overwhelming. The penalties actually given in federal law are slight, unless you're a big-time dealer (which is similar, incidentally, to the actual outcomes in legalizer states, which also still outlaw big-time dealing).
Legalization is certain to have a perverse dynamic effect. Your blog has occasional entries about this, more or less to this effect: "Well, we've legalized pot in many states, and the sky has not fallen. Besides, Drug X (fill in anything) also has some medicinal effects. So let's legalize Drug X."
For the health of the country, I don't think that's the path we want to go down. And a 40-year (and counting) massive consensus of both parties agrees with me.
Nor is it just politicians who have a stake in keeping the government big and powerful. In a Huffington Post poll I've discussed before but am too lazy to link right now, between 80 and 90 percent OF CITIZENS also oppose legalization of hard drugs.
This is not because of any cynical or self-interested-in-big-government motive. It's because if you, as a normal, everyday person, find a syringe in your 16 year-old's jeans, you are going to have a heart attack.
You're not going to have it because you're a Puritan. You're going to have it because you correctly realize your son or daughter is in mortal danger.
People who make a buck off the ignorance, recklessness, misery and dependency of others are vile. They are also dangerous to public health, and belong in the slammer for the long terms they properly get from the great majority of judges, Republican and Democratic appointees.
Selling very dangerous drugs is rightly and almost uniformly viewed as criminal in character. Libertarians are just on the wrong side of this issue, which is why I suggest they move on.
Although I know this sounds harsh, the truth is that the country has already moved on without them. Legalization of hard drugs in any form simply is not on any mainstream agenda and hasn't been since Timothy Leary was a young man.
In quick order:
MJS: do you think it fair/appropriate for crack to be punished much more harshly than cocaine? The US Sentencing Commission long said differential treatment under federal sentencing law was not justified, but it persisted in extreme form for 24 years and remains in only a somewhat less extreme form now. That is exhibit A in the belief/concern that tough federal drug laws have historically been developed/applied in ways that lead to a racially skewed federal prison population. Can you see the validity of this perception and how it creates a kind of hyper-sensitivity about stepped up drug enforcement among those concerned about racial justice? (And I agree, Bill, that it is not appropriate or helpful for some to scream racism at every turn, but I also think it important for those who support tougher federal drug penalties to acknowledge the perceptions of a racialized history here having some basis in legal reality.)
Adamakis: If AG Sessions and other believe the harm of MJ reform are so great, they should have the courage to apply federal prohibition and seek to shut down state markets that are openly and fragrantly violating federal criminal law tens of thousands of times every month. My point is that it is hypocritical for AG Sessions and Heather Mac Donald and Bill and others to say the Sessions Memo will bring valuable consistency and honesty to federal drug prosecutions while also making much of the fact that nobody actually gets prosecuted for low level marijuana offenses. If nobody thinks it would be wise or just or efficient for federal prosecutors to enforce federal marijuana prohibition, we ought to reform federal marijuana prohibition (by, for example, saying federal criminal law should follow state law in a region to the feds could still prosecute folks who bring Colorado marijuana into Nebraska).
Bill: I appreciate you realize I do not make rote charges of RACISM, and I trust you realize one can (and should) be concerned about racial justice without asserting that overt racism drives policies that impact different communities differently. (Your own express of concern about Callahan's victims --- and statements about why they did not get a lot of attention --- highlights that you too can have some concerns about racial justice at least when it comes to victims.)
I also appreciate you affinity for transparency in the work of prosecutors. I am hopeful the Sessions DOJ will be more transparent that prior ones, and I hope we can work together to help ensure that reality. I would especially like to see memos and/or other information being put together these days inside DOJ as part of its on-going violent crime task force. Among other things I think DOJ could/should try to do is a trial penalty/plea reward study. I understand your suspicious of HRW, but HRW is filling a gap left by DOJ and the USSC.
With respect to drugs, I see and understand your concerns about the slippery slope of more freedoms as these freedoms relate to drugs, but I will always have more concerns about the slippery slope of more government as the government claims the potential harms of freedom are too great.
Prof. Berman: "...we ought to reform federal marijuana prohibition
(by, for example, saying federal criminal law should follow state law
in a region to the feds could still prosecute folks who bring Colorado
marijuana into Nebraska)."
Nice notion,
Yet the problem with living with scumbags next door - as Texas faces day and night -
is that they tend to inflict much pain before suppression. Democratic proscription is preferable.
My answer is to reveal the TRUTH about the negative ramifications from marijuana
legalization, so that voters may make informed decisions. [This is becoming less
likely due to biased democratic media reporting, see :
http://www.realclearpolitics.com/2017/05/21/harvard_study_cnn_nbc_trump_
coverage_93_negative_410848.html].
Omaha World-Herald, May 27, 2017
"out-of-state drug dealers"
"marijuana and hashish"
"Colorado’s legalization of recreational marijuana"
"Having to handle more marijuana-related incidents ...
strain[ing" local law enforcement resources."
"[Cheyenne County Sheriff] Jenson said the haulers were found to be
carrying large amounts of marijuana and hashish in the tires of the cars
being transported. He said about 200 pounds of illegal controlled substances
were seized.
Jenson was among a group of Nebraska and Kansas sheriffs who in 2015
filed a lawsuit saying Colorado’s legalization of recreational marijuana .. is spilling trouble and expense into their jurisdictions."
~ http://www.omaha.com/news/crime/cheyenne-county-sheriff-thanks-out-of-state-drug-dealers-after/article_1e8c1962-4213-11e7-a161-7721399abc12.html
Admakis, you seem to be missing my main point, which is that if "the TRUTH" about state marijuana legalization is so negative, the Sessions DOJ ought to start enforcing federal prohibition and supporters of the Sessions DOJ ought not defend the Sessions Memo by saying it will not impact marijuana users.
There are lots of important debates to be had over the pros and cons of state medical and recreational marijuana reforms. But what is beyond debate is that there is a inconsistency when Heather Mac Donald and Bill and others defend tougher and more honest and more consistent enforcement of federal drug laws at the same time that federal marijuana laws are not being enforced in the dozen+ states with ever-expanding marijuana industries.
Call me old-fashion, but I think the rule of law and honesty is important ... and the rule of law and honesty is being undermined with the current status of federal marijuana prohibition. That is my main point, and actually one that the media does not discuss nearly as much as it should.
Doug: I don't need to remind you that the impetus for harsh crack cocaine sentencing laws came from the black community that was being ravaged by the highly addictive qualities of the drug and the violence associated with its trafficking.
I will admit that the 100-1 ratio was excessive and that has been tempered over the years. However, the violence associated with the open air trafficking of this drug is still a clear and present danger in the inner cities and as such, requires stiffer penalties.
"Admakis, you seem to be missing my main point, which is that if "the TRUTH" about state marijuana legalization is so negative, the Sessions DOJ ought to start enforcing federal prohibition and supporters of the Sessions DOJ ought not defend the Sessions Memo by saying it will not impact marijuana users."
Of course they should, but pointing out their inconsistency does not make your argument any stronger. It only points out their inconsistency.
Don't pretend you are for consistency when you only seek it from those who oppose your positions. The DOJ is not going after big pot because of political reasons. Everyone knows that.
That does not make it less harmful or fully legalizing it a better idea.
Just as it is inconsistent to downplay the serious health concerns from pot and claim to want to keep kids safe from it. It's a fact that states with legal marijuana have more kids use than states without. We also know that alcohol use by teens (a drug that is otherwise legal) is far higher than pot because legal drugs are far more available than illegal drugs. Making pot legal means more kids are smoking it.
The arguments in favor of pot legalization over the last couple of decades a least have all been inconsistent and worked to erode the "rule of law." For example, medical marijuana sob stories. I bet finding a single post on your blog pointing this out would be very difficult.