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Mandatory Minimum Punishments: Do they have a legitimate purpose?

Many federal and state crimes carry a “mandatory minimum” term of imprisonment for any defendant convicted of that crime. In practice, this means that if you are convicted of an offense that carries such a punishment, regardless of any mitigating circumstances in the case, the judge is bound by law to sentence you to the specified mandatory minimum punishment. As I mentioned in my post last week, drug law is one area where mandatory minimums are extremely popular.

Attorney General Eric Holder recently released his intention to reform drug law and do away with many of the mandatory minimum sentences for non-violent drug crimes. Such sentences have ruined countless lives and overcrowded prisons beyond capacity. Jacob Sullum, contributor for Forbes, reported some of these horror stories in his September 18th article. For example, consider, “a 10-year sentence received by an 18-year-old first-time offender caught with less than two ounces of cocaine, a 22-year sentence received by an 24-year-old woman who sold 13.9 grams of crack to a police informant, and a 25-year sentence received by a 46-year-old father of three who sold some of his painkillers to someone he thought was his friend.”[1] While these are only a few examples of the hundreds and thousands of individuals who received similar sentences, they serve as a realistic illustration of the practical application of mandatory minimums for drug crimes. Are these punishments justified? If so, do they enhance safety or serve some other important interest of our society?

It is hard to see what rational basis is served by incarcerating those who, as above, possessed a miniscule amount of drugs. Are these the dangerous criminals in society who deserve to go to jail for 10, 22, and 25 years? One would venture to guess that most people would see the individuals who import the drugs into the U.S. as the ones who deserve these harsh and lengthy prison sentences.

Additionally, we should also think about the nature of drug crimes, particularly possession charges. It is a fairly established fact that drug addiction can destroy someone’s life; if someone has a serious drug addiction, their actions are, many times, the result of their addiction. We know that drug addiction, much like alcoholism, becomes a life long battle for addicts. Do we throw alcoholics in jail for drinking too much? In the drug context, we send those who are caught with drugs on their person to prison for long periods of time in an effort to “rehabilitate” them.

The flip side of the coin of drug arrests, especially for possession, is that many low-level peddlers who receive these steep sentences are selling drugs to earn money. While this is illegal, are their actions as morally culpable as someone who commits a murder?

The over-arching problem here is that mandatory minimum sentences take away a sentencing judge’s ability to tailor the sentence to the circumstances. Under the Sentencing Guidelines, passed in 1986 as part of the Sentencing Reform Act, judges for many crimes are given an advisory range of imprisonment to consider when sentencing a defendant. There are factors the judge must take into account when coming to his conclusion, thus allowing him the flexibility in non-mandatory minimum cases to set an appropriate term of punishment or imprisonment based on the circumstances. However, before United States v. Booker was decided in 2005, these guidelines were mandatory. 545 U.S. 220 (2005). After Booker, the guidelines were deemed only advisory by the Court. Giving a sentencing judge the ability to appropriately tailor a sentence to the circumstances seems to be a cornerstone of our legal system. Our system aims to punish, but only enough to fulfill our goals of punishment (deterrence, incapacitation, etc.).

However, the Sentencing Guidelines were originally instituted to strip judges of this power to tailor an appropriate sentence. The legislature became concerned with the variance in sentencing for the same crime amongst judges. But, have we gone too far in alleviating the judges of this ability? Should judges have discretion to impose a fair sentence in every case, or only some?

Hopefully Eric Holder’s call for change in mandatory minimums for certain drug crimes will spark a wave of change in this area of sentencing law.


[1] http://www.forbes.com/sites/jacobsullum/2013/09/19/rand-paul-is-right-about-the-injustice-of-mandatory-drug-minimums/


Winning the Battle, but not the War? What has the “War on Drugs” really accomplished?

In the recent months, more attention has been allocated to the effects of the “War on Drugs” instituted by the government in the 1970’s. The ACLU released a report in June 2013, highlighting three key areas of the “War on Drugs” that now, statistically, seem to conflict with the aims of curbing drug use, possession, and distribution. The ACLU report, entitled “The War on Marijuana in Black and White” captures the racial bias in the application of the “War on Drugs” in addition to the allocation of money and police officers to fighting this “War.”

On August 12, 2013, Attorney General Eric Holder issued a statement in front of members of the ABA stating that the federal government is looking to eliminate mandatory minimum sentences for some crimes as well as implement other measures. Holder noted that it is unclear if there are positive effects coming out of the now 40-year old war on drugs.

Following the Emmy’s on September 22nd, Michael Douglas shared his personal views, derived in part from personal experience, expressing his distaste for the current status quo amongst drug policies.

Has the United States been misguided over the last forty-some years in executing this war on drugs? Were the original intentions justified? Does public perception alone signal that something should be done to change the current practices regarding arrest and conviction of drug offenders?

The ACLU report in its entirety seems to demonstrate that states and the federal government may be spinning their wheels in an effort to substantiate the use of so many resources for, to some, a questionable policy.  Should we be concerned that, according to the ACLU report, “In 2010, there were more than 200,000 people incarcerated on the sole charge of marijuana possession,” and, that African American’s are “3.73 times more likely to be arrested for marijuana possession than a white person”?

It seems pertinent to ask whether the “War on Drugs,” in its current form, is serving the purposes originally intended. For instance, are we as a society so concerned with marijuana possession that it justifies arresting hundreds of thousands of people each year? The ACLU report found that, “Of all marijuana arrests in 2010, 784,021, or 88%, were for possession. Similarly, 88% of all marijuana arrests between 2001 and 2010 — 7,295,880 out of 8,244,943 — were for possession.” Should our efforts and resources be allocated to arresting individuals for possession charges? Consider too, the 784,021 individuals arrested in 2010 logically obtained their marijuana from somewhere. Should the police and prosecutorial efforts be focused more on distributors rather than users? Is there a difference in terms of culpability?


Mendocino County Marijuana Regulation v. Federal Prohibition

Mendocino County Marijuana Regulation v. Federal Prohibition


A recent episode of This American Life discussed the interaction between federal law, which prohibits marijuana growing; California law, which permits it in limited circumstances; and a Mendocino County regulation that attempted to reconcile the two.


Here is a description of the story:


Under California law, it’s legal to grow marijuana for medicinal purposes if you have a doctor’s recommendation. A few years ago, Mendocino County Sheriff Tom Allman was trying to find a way to deal with the proliferation of marijuana in his county. Allman wanted to spend less time dealing with growers who were growing small, legal amounts, so he could focus on other problems — including criminals who run massive marijuana farms in the Mendocino National Forest. So he came up with a plan to allow the small farmers to grow, if they registered with his office. Growers would pay for little zip-ties they could put around the base of their marijuana plants, and the cops would know to leave them alone. It saved time and generated revenue. Reporter Mary Cuddehe tells the story of how the county and the nation responded to the sheriff’s plan. (18 minutes)


The House I Live In

I recently watched “The House I Live In” a documentary about the cost of the War on Drugs. “The House I Live In” won the Grand Jury Prize: Documentary at the Sundance Film Festival. The documentary is available from multiple outlets, including Netflix.

Here is a description of the documentary:

Why We Fight director Eugene Jarecki shifts his focus from the military industrial complex to the War on Drugs in this documentary exploring the risks that prohibition poses to freedom, and the tragedy of addicts being treated as criminals. In the four decades since the War on Drugs commenced, more than 45 millions of addicts have been arrested — and for each one jailed, another family is destroyed. Meanwhile, the prisons in America are growing overcrowded with non-violent criminals, and illegal drugs are still being sold in schoolyards. By examining just where it all went wrong, Jarecki reveals that a solution is possible if we can just find it in ourselves to be compassionate, and see past the decades of paranoia and propaganda.

So Weed It Is: Why Dr. Sanjay Gupta Changed His Mind on Marijuana

So Weed It Is: Why Dr. Sanjay Gupta Changed His Mind on Marijuana

This Sunday, August 11 at 8PM, CNN will feature a documentary by Dr. Sanjay Gupta, CNN’s Chief Medical Correspondent, titled, “WEED”. In promoting the documentary, Dr. Gupta wrote a commentary explaining why he changed his mind on weed. 

Here is how it begins: 

Over the last year, I have been working on a new documentary called “Weed.” The title “Weed” may sound cavalier, but the content is not. I traveled around the world to interview medical leaders, experts, growers and patients. I spoke candidly to them, asking tough questions. What I found was stunning.

Long before I began this project, I had steadily reviewed the scientific literature on medical marijuana from the United States and thought it was fairly unimpressive. Reading these papers five years ago, it was hard to make a case for medicinal marijuana. I even wrote about this in a TIME magazine article, back in 2009, titled “Why I would Vote No on Pot.”

Well, I am here to apologize. I apologize because I didn’t look hard enough, until now. I didn’t look far enough. I didn’t review papers from smaller labs in other countries doing some remarkable research, and I was too dismissive of the loud chorus of legitimate patients whose symptoms improved on cannabis.

Instead, I lumped them with the high-visibility malingerers, just looking to get high. I mistakenly believed the Drug Enforcement Agency listed marijuana as a schedule 1 substance because of sound scientific proof. Surely, they must have quality reasoning as to why marijuana is in the category of the most dangerous drugs that have “no accepted medicinal use and a high potential for abuse.”

They didn’t have the science to support that claim, and I now know that when it comes to marijuana neither of those things are true. It doesn’t have a high potential for abuse, and there are very legitimate medical applications. In fact, sometimes marijuana is the only thing that works. Take the case of Charlotte Figi, who I met in Colorado. She started having seizures soon after birth. By age 3, she was having 300 a week, despite being on seven different medications. Medical marijuana has calmed her brain, limiting her seizures to 2 or 3 per month.

Special thanks to Professor Douglas A. Berman’s insightful blog, Sentencing Law and Policy,” for bringing this story and documentary to my attention.