Sentencing Commission touches the third rail

The Sentencing Commission released a comprehensive report on February 27 and asked Congress for broad authority to scrap the current penalties for child pornography and build an entirely new guideline for those crimes.  Read more about it in this Washington Post article.

Why did the Commission dare to touch this third rail at all?  After all, the Commission has been increasing the sentences recommended for receiving, possessing, or passing on child pornography (from an average of 54 months in 2004 to 95 months in 2010) partly at the behest of Congress, which has made its views about these sentences clear:  Increase them!  But as sentences for non-production child pornography crimes have increased, so has the rate at which the guidelines are ignored.  Today, judges impose the recommended sentences in only 32.7% of non-production child pornography cases.  This is the lowest within-guideline rate of any major crime.

What is going on?

Below-guideline sentences these extreme once were red meat for the Department of Justice, which in the past would point to such flagrant disregard of the law as evidence that judges were straying too far from sentencing guidelines and should be reined in. 

But, remarkably, the Department of Justice has been leading the charge on lower child pornography crime sentences!

First, federal prosecutors use their toolboxes to secure lower sentences for such offenders.  Using creative charging, plea agreements, and straight-up requests for judges to vary, prosecutors are responsible for 55.7% of all below-guideline sentences.

Second, the Department of Justice has added its voice to those of the defense bar, judges, and advocacy groups like FAMM, asking the Commission to reexamine and revise this very troubling guideline. 

The report teaches, among other things, that

• The guideline was written for a much earlier time. Technology has changed how receipt and possession take place and the ease with which someone can access thousands of images (numbers of images lead to increased guideline sentences). The reasons that sentences can be increased don’t have much to do with a person’s culpability and dangerousness. 

• Receipt of child pornography is subject to a five-year mandatory minimum, while possession (hardly possible without receipt) is not. Prosecutors use their charging discretion in this area to reduce sentences they consider excessive or pressure defendants to plead guilty to get a lower sentence and avoid the mandatory minimum. This leads to “widespread and growing sentencing disparities.” 

• While child pornography offenders share a 30% recidivism rate with the general federal offender population, only 7% commit new sexual crimes.

Clearly this is a guideline that needs an overhaul, but the Commission does not believe it can fix the problems without Congress’s permission. The Commission feels it needs congressional permission because many of the existing guideline sentences are required by federal laws that only Congress can change.

Will Congress have the courage to let the neutral body of experts do its job?

Mary Price

General Counsel and Vice President, FAMM

Med Marijuana Bill Introduced in U.S. House

Rep. Earl Blumenauer (D-OR) has introduced a bill that would limit federal prosecution of those using, selling, or growing marijuana in compliance with state law.

According to Politico,

Blumenauer’s legislation, which has 13 co-sponsors — including GOP Rep. Dana Rohrabacher of California — would create a framework for the FDA to eventually legalize medicinal marijuana. It would also block the feds from interfering in any of the 19 states where medical marijuana is legal.

At a press conference outside the Capitol, Blumenauer didn’t attack the Drug Enforcement Administration for targeting marijuana dispensaries or blame the Justice Department for forcing marijuana businesses to operate in a legal gray zone. Instead, he pitched his legislation as a solution to the confusion surrounding federal marijuana policy.

“Frankly, the people in the federal hierarchy are in an impossible position,” Blumenauer said, adding: “It gets the federal government and the Department of Justice out of this never-never land.”

On the heels of successful referendums legalizing marijuana in both Colorado and Washington state, Blumenauer and Rep. Jared Polis (D-Colo.) introduced legislation to end federal marijuana prohibition and set up a scheme to tax the drug.

Representatives Polis and Blumenauer have also released a report outlining a strategy for marijuana legalization and taxation.

FAMM has no position on legalization of any drug, including marijuana.  Our job has always been focused solely on repealing mandatory minimum sentences so that the punishment fits the crime and the offender.  

But all this talk about marijuana legalization -- including, now, at the federal level -- begs the question:  are mandatory minimum penalties for marijuana justified at all?  About half of the country thinks marijuana should be legal, yet every year, thousands of federal (and state) offenders still get lengthy mandatory minimum sentences for growing, selling, and/or using the drug.  If Congress isn't ready to legalize the drug, it should seriously consider getting rid of mandatory minimum sentences for it.

Almost two-thirds of those asked in a recent poll feel that the federal government has no business prosecuting marijuana growers, sellers, and users under federal law in states where the drug is legal.  

Staring down the barrel of a sequester, let's ask ourselves:  is prosecuting marijuana offenders under federal law -- with long federal prison sentences, in states where the conduct is legal -- really a good use of government resources?

What the Sequester Means for the BOP

Sequester, sequester, sequester. It's all over the news and all anybody can seem to talk about.

It also may impact the federal Bureau of Prisons, as this letter from Attorney General Eric Holder to Senator Barbara Mikulski (D-Md.) explains and this article from Forbes' Walter Pavlo summarizes.

Here are the cuts, from Attorney General Holder's letter, with some of our thoughts interjected:

The sequestration would cut $338 million from BOP’s current budget. BOP would face a furlough of nearly 36,700 onboard staff for an average of 12 days, plus curtailment of future hiring, if sequestration occurs. This equates to about a 5 percent reduction in onboard staff levels and would endanger the safety of staff and over 218,000 inmates. As a consequence, BOP would need to implement full or partial lockdowns and significantly reduce inmate reentry and training programs. This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates. Further, limiting or eliminating inmate programs such as drug treatment and vocational education would, in fact, lead to higher costs to taxpayers and communities in the long run as the lack of such inmate re-entry training makes it less likely that released inmates will be successful at reintegration into society upon their release.

Thought 1:   The solution here isn't a bigger prison budget, but a smaller prison population. And for that, we need sentencing reform.  Mandatory minimum sentences have stuffed the Bureau of Prisons with nearly 40 percent too many prisoners.  If we got rid of mandatory minimum sentences, we'd see the prison population (and federal prison budget) shrink.

Further, BOP would slow the ongoing activations of new prisons that have completed construction during the last few years (FCI Berlin, NH, and FCI Aliceville, AL). BOP would not begin the FY 2013 planned activations of FCI Hazelton, WV, or USP Yazoo City, MS. BOP would still incur costs to secure and maintain these prisons, along with the prison in Thomson, IL. These five prisons represent over 8,100 beds that BOP would not be able to utilize fully at a time when our prisons are filled over rated capacity. In addition, the communities surrounding the prisons would not benefit from the significant economic activity that a prison engenders. We estimate that sequestration will mean over 3,800 fewer jobs related to the prison activations that would be foregone (including an estimated 1,500 private sector jobs).

Thought 2:  Do we really want prison expansion to be an area of job growth?  Seriously?  Politicians may want to brag about job creation, but it shouldn't be in this area.

I am acutely concerned about staff and inmate safety should cuts of the sequestration’s magnitude hit BOP. To be blunt, sequestration means less money, not fewer inmates. We would still have the same number of inmates – over 218,000 – after sequestration as before. This kind of dangerous situation is exactly why sequestration needs to be avoided and sensible, balanced deficit reductions achieved. While I plan to take every available step within my authority to aid BOP should sequestration happen, these steps cannot mitigate the severity of every cut faced by BOP.

Thought 3:  Avoiding sequestration does nothing to solve the real problem:  too many federal prisoners serving too many mandatory minimum sentences.

Sentencing reform is the real money-saver and budget-cutter. It's the solution the Administration should be supporting.

Molly M. Gill
Government Affairs Counsel, FAMM

Looking Back at the Rock Laws

New York's so-called Rockefeller drug laws were some of the toughest mandatory minimum drug sentences ever created -- and they were recently reformed and mostly repealed.  But what is their legacy?

In case you missed it, this NPR radio duo of shows describes the Rockefeller drug laws' impact, both human and fiscal.

This segment describes how the draconian Rockefeller drug laws shaped a whole era of sentencing policy, and how we are still living with the results:  long, mandatory sentences for nonviolent drug crimes; too many people in prisons; budgets crunched and crumbling trying to maintain an unsustainable system.  It all sounded good at the time, to the public and to lawmakers, but decades later, state after state is realizing the folly of mandatory minimum sentences.

Congress should take note and reform federal mandatory sentences.

Lest we forget the human impact, this segment tells the story of George Prendes, who served 15 years without parole for a New York state drug offense:

There are roughly half a million people behind bars for nonviolent drug crimes in America. But no one really knows how many people have been sentenced to long prison bids since the laws known as Rockefeller drug laws first passed 40 years ago.

What's clear is that tough sentencing laws, even for low-level drug dealers and addicts, shaped a generation of young men, especially black and Hispanic men.

Men like George Prendes, now 59. Born in Cuba, he now works long hours as a telemarketer, barely making rent on his tiny, cluttered apartment in the Bronx.

"It's just the drudgery," Prendes says of his life today. "I mean at my age, I shouldn't be struggling like this."

His wife, Yvonne, says prison carved a hole in the middle of Prendes' life.

"His experience damaged a part of him, you know? Wanting to recuperate the time lost," she says. "And you just can't do that. You can't get those 15 years back."

SNITCH opens today!

The new movie "Snitch" opens in theaters today!  Find a theater near you -- and buy tickets -- right here.

The film tells the true story of a father, played by Dwayne "The Rock" Johnson, who goes undercover to catch a drug cartel leader so that his son can escape a 10-year mandatory minimum sentence.  It's a powerful, moving story about how mandatory sentencing laws impact families.

And it's got plenty of action, suspense, car chases, and gunshots, for those who want to sit on the edge of their seats.

Also, don't miss this great interview with FAMM President Julie Stewart and "Snitch" director Ric Roman Waugh, on Current TV.

Roger Ebert Reviews "Snitch"!

Film critic Roger Ebert has a review of "Snitch" up now, with lots of praise for the film's acting, action, and suspense.

The film's message doesn't escape him, either:

this movie executes two missions: A) to entertain us; and B) to put some big exclamation points on a couple of messages about certain drug laws in this country in need of a thorough re-examination.

In the Beginning ...

There was a pot conviction.  A man growing marijuana got a five-year prison sentence.  Required by law.  Nothing the judge could do about it but give the five-year term, even though less time would have sufficed.

And that's how Julie Stewart came to start Families Against Mandatory Minimums (FAMM), back in 1991.

You can read the full story here, in a new piece at Take Part's companion website to the new film "Snitch," coming to theaters tomorrow, February 22.

“Families against what?”

When I started Families Against Mandatory Minimums (FAMM) in 1991, I got that question a lot. Few people knew what mandatory minimums were. In fact, it seemed that the only people aware of them were the politicians who voted for them and the individuals who were sentenced to them. I set about to change that. For the past two decades, I have dedicated my life to educating as many people as I could about the stupidity and cruelty of mandatory minimum sentencing laws.

The first person I educated was myself. I knew nothing about mandatory sentencing laws, prison or criminal justice issues until my brother was arrested for cultivating marijuana in 1990. He was pretty much treading water with his life when he and two friends decided to grow marijuana in a garage. One of the friends was an electrician; so he set up the grow lights, and they proceeded to fit as many small garden pots as possible into the garage space with marijuana seeds in each—365 in all.

When the marijuana plants were about six inches tall, one of the friends decided to show a neighbor what they were doing. The neighbor surveyed the garage full of marijuana seedlings and promptly called the police. My brother’s two friends were arrested and immediately turned in my brother. In exchange for their cooperation, they each received probation—even though one of them had been to prison in California for a drug offense.

My brother’s case is small potatoes in many ways; yet it illustrates much of what’s wrong with our sentencing policies. First and foremost: Why was my brother’s case prosecuted in the federal system? The offense took place in a garage in Washington State. He didn’t cross state lines; he didn’t sell drugs to a federal informant (he didn’t sell any!); he didn’t launder money; there was no logical reason for the federal government to pick up my brother’s petty marijuana growing attempt.

The only explanation that makes sense is that prosecutors knew he would do more time in federal prison than in state prison. This is commonly referred to as “jurisdiction shopping.” In the 21 years I’ve been running FAMM, I’ve seen it carried out repeatedly. Small-fry drug offenders are routinely prosecuted in the federal system and end up serving many years in prison. ...

The prosecutor told my brother there was only one way to avoid that sentence—snitch on someone else. At the time, I was horrified by the thought of my brother going to prison for five years. I’m not proud to admit that I begged him to consider informing on someone else. He considered it. He knew other people, longtime friends in some cases, who had been growing marijuana for years. But he also knew that if he turned them in, they would be subjected to the same madness he was going through, and their families would be left in shambles.

My brother decided he could not live with himself if he destroyed someone else’s life just to save his. I respected his decision, and I’m glad he made it even though it meant he had to spend five years in prison. But my initial reaction to the snitching-option makes me understand why people choose it, especially when facing mandatory sentences of ten or 20 years or life in prison.

That’s when I really learned about mandatory minimum sentencing laws. ... If, and only if, the government thinks you’ve been helpful, it will grant a motion that allows the judge to give you a sentence lower than the mandatory minimum sentence.

When my brother was sentenced, the federal judge looked at him and said, “I do not want to give you this sentence but my hands are tied by Congress.” What the judge meant was that the mandatory drug sentencing laws Congress passed in 1986 forced him to give my brother a five-year sentence. Because my brother had not cooperated, the government did not file a motion that would have allowed the judge to sentence him to less than five years. In court, the judge railed against mandatory minimum sentences—and my eyes were opened.

So, this is why we're fighting.  It's not just data to us, here at FAMM.  Every sentence is a person, a true story, and a call to action.  Make sure to check out "Snitch" in theaters this weekend, sign the petition at the Take Part website, and tell your friends about FAMM's work!

Solitary Confinement = Torture

That bold statement is coming from a source you might not expect ... wait for it ... conservative writer George Will, in the Washington Post.

We doubt anyone would call Will a liberal, much less a bleeding heart one, and that's good -- because you don't have to be either to agree that the use of extended solitary confinement in America's prisons is just plain cruel. Take it from Will, who makes good arguments that solitary confinement is inhumane, expensive, and undermines public safety:

Federal law on torture prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” And “severe” physical pain is not limited to “excruciating or agonizing” pain, or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.” The severe mental suffering from prolonged solitary confinement puts the confined at risk of brain impairment.

Supermax prisons isolate inmates from social contact. Often prisoners are in their cells, sometimes smaller than 8 by 12 feet, 23 hours a day, released only for a shower or exercise in a small fenced-in outdoor space. Isolation changes the way the brain works, often making individuals more impulsive, less able to control themselves. The mental pain of solitary confinement is crippling: Brain studies reveal durable impairments and abnormalities in individuals denied social interaction. Plainly put, prisoners often lose their minds. ...

Mass incarceration is expensive (California spends almost twice as much on prisons as on universities) and solitary confinement costs, on average, three times as much per inmate as in normal prisons. And remember: Most persons now in solitary confinement will someday be back on America’s streets, some of them rendered psychotic by what are called correctional institutions.

And leave it to George Will to quote the likes of Charles Dickens in opposition to locking people away all alone:

Two centuries ago, solitary confinement was considered a humane reform, promoting reflection, repentance — penitence; hence penitentiaries — and rehabilitation. Quakerism influenced the design of Philadelphia’s Eastern State Penitentiary, which opened in 1829 with a regime of strict solitude. In 1842, Charles Dickens visited it:

“I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.”

Wow. Read that again. It packs a wollop.

Here at SentenceSpeak, we're always trying to paint a full picture of what it means to send someone to prison. Prison means solitary confinement for many people. Let's not forget the full wollop of a prison sentence, and let's work to make incarceration as humane as possible -- and prison sentences not a day longer than necessary to keep us safe and rehabilitate offenders.

The Message is Getting Out There!

We're getting the message out there, and more and more people are agreeing with us:  mandatory minimum sentences have got to go.

First, this New York Times editorial calls for the reform of mandatory minimum sentences!  

Attorney General Eric Holder Jr. recently said that his top priority is to improve the criminal justice system. He can start by pushing Congress and the United States Sentencing Commission to fix the unfair problem of excessive mandatory minimum sentences.

Second, check out FAMM President Julie Stewart's Chicago Tribune argument that Illinois should not embrace more mandatory minimums to deal with gun violence.  Mandatory sentences are usually created in the wake of high-profile crimes, with lots of fear and little research -- at huge cost (and little profit) to taxpayers:

Twenty-seven years ago, a young African-American basketball star named Len Bias was drafted by the Boston Celtics, went out to celebrate, overdosed on cocaine and died. Bias’s death was the tipping point for lawmakers who had been struggling to deal with what was being called the crack epidemic. Within two months, Congress hastily adopted new laws to impose stiff prison sentences on crack cocaine possession and selling. There were no hearings or debates. No expert testimony was solicited, no alternatives were considered. The law hurtled through Congress driven by the raw emotion of losing such a promising young man and “fixing” the growing crack cocaine problem.

Len Bias’s death did not mark the first or last time lawmakers seized on a high-profile crime to rush through an ill-considered legislative response, but it is worth recalling as Chicago and Illinois leaders consider new gun laws. One family’s unspeakable tragedy was used to create misery for tens of thousands of others families. ...

The lesson for Illinois state leaders is obvious. All of us want to figure out how we can prevent the bright lights of the next generation, like Hadiya Pendleton, from falling victim to senseless gun violence. We all want violent criminals to be sent away where they cannot harm our children and communities. But introducing new mandatory gun sentences is not the answer.

In the wake of the Newtown, Connecticut shooting in December 2012 and the Chicago gun violence, lawmakers should not hurry to pass harsher and harsher gun laws.  For one thing, they're already too harsh.  For another thing, we don't need yet another bunch of poorly-thought-out mandatory sentences that will fill prisons and cost taxpayers millions with little to no benefit to show for it.

Third, check out Molly Gill's arguments about the down-sides of snitching and the solution:  abolish mandatory minimums.  And while you're at that site, check out all of the news, features, and online petition you can sign to help end mandatory minimum sentencing laws, all tied in to this Friday's release of the new film "Snitch."

Snitch is Coming!

The exciting new film "Snitch" is coming to theaters on February 22!  Check out the trailer below, and their info-packed website here.  Dwayne "The Rock" Johnson stars as a father trying to save his son from a 10-year mandatory minimum.  The film is action-packed and tugs on the heartstrings!  It's the perfect his-and-hers date night!

And if you're in the Washington, DC area, let us know if you can attend a free screening of the film on Wednesday, February 20, at the Landmark E Street Cinema. Please R.S.V.P. to RSVP@famm.org by Monday, February 18.

Relatives Serve Time, Too

You know it's true.

And so does Karen Garrison, FAMM's longtime office assistant and the mother of not one but two twin sons who served lengthy, mandatory minimum sentences for nonviolent drug offenses.

Watch Karen here, discussing the impact of these unjust sentences on thousands of families, including her own.

Mandatory Minimum Cop-out

That's the title of this Huffington Post op-ed from FAMM President Julie Stewart.  

As Chicago announces plans to pass mandatory minimum sentences for gun offenses, Julie reminds the city that mandatory minimums aren't what they seem:

On Monday, Chicago Mayor Rahm Emanuel, Police Superintendent Garry McCarthy, and Cook County State's Attorney Anita Alvarez announced their support for legislation to impose mandatory minimum prison sentences for gun crimes. The move comes just months after Chicago closed the book on its deadliest year in decades; in 2012, there were 506 homicides committed in the Windy City, a disappointment after three years of decline. While the instinct to lock up dangerous, gun-toting criminals is a good one, the proposal unveiled Monday is a cop-out.

To begin with, even the name "mandatory minimum" is false advertising. Mandatory minimum sentencing laws are neither mandatory nor do they impose minimum sentences. Under a truly mandatory sentencing law, everyone arrested for the same offense would end up receiving the same sentence if convicted. But that's not how mandatory sentencing laws work. They simply transfer the discretion that a judge would have to impose an individualized sentence (based on relevant factors, such as a defendant's role in the crime, criminal history, and likelihood of reoffending) and give that discretion to prosecutors.

Under mandatory sentencing laws, prosecutors have control over sentencing because they have total and unreviewable authority to decide what charges to pursue. They can decide to give a deal to someone whose cooperation they think is helpful and, as a result, help them to avoid a mandatory sentence. Or prosecutors can charge someone with a lesser offense to avoid a mandatory minimum sentence when they recognize, contrary to what they will admit in their press releases, that the minimum sentence would be ridiculous in some cases.

It's not all about crime rates, either:

Chicago's own track record demonstrates the harm in reading too much into crime statistics. The state's current mandatory minimum for illegal gun possession was implemented in 2011. The next year, city homicides rose more than 16 percent. It would be as ridiculous to attribute that rise in homicides to the mandatory sentencing law as it would be to pretend another mandatory law will reduce it.

Chicago's residents deserve real solutions to address city violence. New mandatory minimums are not the answer.

Whatever the answer is to Chicago's gun violence, it isn't longer, more expensive sentences for more and more people. Mandatory minimums look good in a crisis, but they are not good in the short -- or long -- run.

You don't have to get life to die in prison

In our country's lust for harsher and harsher sentencing laws, we too often forget how harsh they already are.  I can't even tell you how many times I've heard people say that criminals should rot in prison till they die.  Most of the time, people who say such things are talking about murderers or serial killers ... but not always.

And, in fact, you don't even have to commit a murder to die in prison.  You don't even have get a life sentence -- or the death penalty -- to die in prison.  For the right people under the right circumstances, any prison term can become a death sentence.

Sadly, one such person was Richard Flor, a 68 year-old man attempting to grow pot legally under Montana's medical marijuana laws.  The federal government disagreed and charged and convicted him in federal court.  After he pled guilty, hoping for a shorter sentence and believing he would not survive prison because of all of his health problems, the elderly Flor still got a five-year prison sentence.

Only five years, you scoff?  It was still enough to ensure that Flor died chained to a prison bed only months into his sentence.

"Who in this country deserves to die shackled to a bed over marijuana?" [Flor's daughter, Kristin] said. "Nobody." ...

"My dad was half dead before they sentenced him," Kristin said.

What are we doing?  Did Richard Flor's prison sentence make us safer?  Did it even make sense?  Should we continue using long mandatory minimum sentences when they so obviously -- and tragically -- send thousands of the wrong people to prison for far too long?  How many more Richard Flors must go to prison -- and die there -- before we recognize the absolute folly of the system we have made?

-- Stowe

Why Do Cops Lie?

This New York Times op-ed from Michelle Alexander, author of The New Jim Crow, is sure to push the buttons of almost anyone who's been to trial in an American court.

It's called "Why Police Lie Under Oath" -- and if you think police never do, you're not alone.  Most people who end up in a jury box feel the same.

Alexander explains:

Thousands of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”

I can't tell you how many distraught phone calls I've gotten from people telling me the cops lied at their loved ones' trials -- about how much drugs were sold, how much money was made, who owned the gun, who organized the deal ... and on and on it goes. If even a fraction of the complaints I hear are true (and I can't say either way if they are), there's a lot of lying going on in American courtrooms, and it's not coming from the defendant.

Alexander explains the incentives that drive lying:

Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in.

And lest we forget, lies destroy lives:

One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

Could ensuring that a person gets a mandatory minimum sentence also be a motive for lying?  After all, mandatory minimums depend on the weight and type of the drug involved.  If a person only sold a cop 20 grams of crack on one occasion, but the mandatory minimum of five years doesn't apply until the person sells at least 28 grams, might that be an incentive for police to fabricate another drug transaction, to make up the difference?  No such lying is even necessary in the case of a drug conspiracy.  Our relevant conduct rules make one person in a conspiracy guilty for everyone else's drugs, too -- and those facts don't even have to be proven to a jury by proof beyond a reasonable doubt.

At least when it comes to law enforcement lying about drug quantities, one solution is to get rid of mandatory minimum sentencing laws, which are triggered by certain drugs at certain weights.  Perhaps a whole new approach to drug sentencing is needed -- one that moves away from sentencing being driven by drug type and weight and that gives equal or greater consideration to a person's role, motive, actions, and profit.

What Should Congress do about Aaron Swartz?

The tragic Aaron Swartz suicide is still news, and rightly so.  His case is a call to conscience for our lawmakers and our country.  

When do we know that we have gotten too tough on crime?  When sentences scare defendants to death -- literally. 

Much of the news around the Swartz case has focused on whether prosecutors went too far, but the case presents bigger problems that only Congress can solve.  In this Huffington Post piece, FAMM VP and general counsel Mary Price explains how sentences scare people to death and tells Congress how to prevent a repeat of Swartz's story:

In recent decades, our sentencing laws have become more punitive and frequently call for sentences grossly out of proportion to the harm they punish. These laws have become a club that prosecutors can wield as they seek to earn convictions. Today, nearly 98 percent of people charged in federal court plead guilty. That should come as no surprise.

I have seen this power used for years in drug cases where most of our nation's worst mandatory minimum sentencing laws apply. The threat of decades-long prison sentences convinced defendants to forfeit their right to a trial. Outlandish sentences now have become the norm in other areas as well, such as in white collar criminal cases where Congress has ensured that sentences have been increased exponentially in recent years. Law professor Ellen Podgor noted, "The risk of trial becomes so great that in order to minimize the possible consequences innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place those crimes in comparable stead with street crimes."

Which brings us back to Aaron Swartz. It was shocking that he forfeited his life in the face of prosecutors' threats. While members of Congress are, justifiably, calling on the Department of Justice to account for prosecutorial overreaching, we believe that some honest congressional soul searching is also in order. It is in lawmakers' power to remove the blunt force tools of excessive sentences and mandatory minimums from the hands of prosecutors. Rather than trying to legislate the exercise of executive discretion, policy makers can and should help channel it by ensuring that the sentences offenders face fit the crimes they are accused of committing and that judges have discretion to impose them. The sentencing laws are the problem lawmakers can fix.

Congress should repeal mandatory minimum sentencing laws and stop asking the U.S. Sentencing Commission to keep ratcheting up the sentencing guidelines.  Clearly, our sentences are already long enough.  They're already scaring people to death.

UPDATE:  For a glimpse of what Congress is doing, read this article from Main Justice.  Looks like Representatives Darrel Issa (R-CA), Elijah Cummings (D-MD), and Zoe Lofgren (D-CA) are taking steps to investigate and improve the laws that captured Aaron Swartz.

Good and Mad Reading for the Weekend

This week's good 'n' mad reading is a bit on the sentencing nerd side, but we still like it.

This new report from the Congressional Research Service puts the blame for outrageous federal prison growth squarely on mandatory minimum sentences.

It reads like a "what not to do" of running a cost-effective prison system.

First, get rid of parole for all federal prisoners, and make everyone serve 85% of their sentences.

Second, create lengthy, mandatory prison sentences that judges have to impose on tens of thousands of drug offenders each year.

Third, sit back and watch your prison population (and budget) explode.

The report recommends what FAMM's been saying for 20 years:  Congress should repeal and reconsider mandatory minimum sentences.  We're going to help make sure Congress is listening.