Drug War Injustice and Us

I've moved!

2009-02-04T12:39:00.000-08:00

I am now blogging in the NarcoShere, at: http://narcosphere.narconews.com/notebook/nora-callahan

Be sure to stop by for a visit.

Nora

Smart on Crime, recomendations

2008-11-11T11:44:00.000-08:00

Smart on Crime, recommendations for the new administration and Congress, deserves criminal justice advocates attention, and the link will lead you to website dedicated to presenting the catalog.

After the 2008 elections, America’s policymakers will take a fresh look at the criminal justice system, which so desperately needs their attention. To assist with that review, leaders and experts from all aspects of the criminal justice community spent months collaboratively identifying key issues and gathering policy advice into one comprehensive set of recommendations for the new administration and Congress. This catalogue is the fruit of those labors.

I hope you will share this information with your friends, and family, printing at least some pertinent portions for your imprisoned loved ones.

Econmics and the drug war

2008-10-23T11:55:00.001-07:00

Eric Sterling presented excellent commentary at the Huffington Post.

The economic effect of more than ten million American adults who can't buy cars, houses, furniture, appliances, or other durable goods is like 9-11, Katrina, and every other hurricane combined.

Federal crime issues of note

2008-10-21T13:45:00.000-07:00

The subject of policing financial institutions, solving financial crimes and meting out punishment is beginning to make it’s way into the news.

The New York Times recently reported President Bush gutted the F.B.I.’s fraud investigation unit following 9/11.

The Federal Bureau of Investigation is struggling to find enough agents and resources to investigate criminal wrongdoing tied to the country’s economic crisis, according to current and former bureau officials.

The bureau slashed its criminal investigative work force to expand its national security role after the Sept. 11 attacks, shifting more than 1,800 agents, or nearly one-third of all agents in criminal programs, to terrorism and intelligence duties. Current and former officials say the cutbacks have left the bureau seriously exposed in investigating areas like white-collar crime, which has taken on urgent importance in recent weeks because of the nation’s economic woes…

…In the last four years, the Justice Department has scored fewer of the big-name prosecutions that marked President Bush’s first term in office. Even when investigations have pointed to corporate wrongdoing, the Justice Department has agreed, in dozens of cases in the last four years, to “deferred prosecutions" that allowed companies to pay fines in order to avoid criminal prosecution.

Business Week offered another take:

AIG Fraud Case: Using the Market to Set Jail Terms, Under new federal guidelines, defendants in big stock swindles could get 30 years to life

In coming weeks, five former insurance executives, including General Reinsurance ex-CEO Ronald Ferguson, are due to appear in federal court in Hartford. There, U.S. District Judge Christopher F. Droney will sentence them for their role in a sham transaction to boost the loss reserves of American International Group (AIG). When the deal was disclosed in 2005, prosecutors contend, it caused AIG's share price to drop 6% to 15%. Because of that, the defendants, who were convicted of fraud in February, could go to prison for life…

…Given the size of losses related to the subprime meltdown, prosecutors may be able to threaten alleged culprits with lifetime incarceration. Reid H. Weingarten, a Washington attorney representing Elizabeth Monrad, the convicted former Gen Re CFO, argues that "this puts unhealthy leverage in prosecutors' hands to extract unfair plea deals.

I have to agree, prosecutorial power threatening some people with life in prison, will start a “liars festival” just like it does in drug prosecutions. And these types of prosecutions seldom lead to culpable offenders punished appropriately — it leads guys and gals last in line, or those who stubbornly takes his or her case to trial — decades to life in federal prison. People will say anything under stress and duress of federal indictment, and to get out from underneath the weight of it. The Innocence Project has discovered and explored this easily exploited human tendency. That said, there will never be thousands upon thousands of “Organizational Offenders” (corporate and business fraud offenders) to warrant enough public pressure for their earned, early release, even if the wrong people end up in federal prison. With ill gotten goods confiscated, some will lack political power they had in two decades past. They’ll be just like us, only there won’t be many of them — a few hundred before this new federal ‘witch-hunt’ is over, perhaps — and victimized people won't be satisfied.

Before anyone rushes to condemn and terrify the offenders in the financial collapse, we need instead, to use this criminal financial crisis to re-visit powers of prosecutors, the politicization of crime, and what our incarceration system is supposed to achieve — especially on the federal level. If it is to build and maintain public and private gulags, without thought to the cost to our economy and human resources, remind your leaders over-incarceration doesn’t work. When people go home, they are broken, not better.

Financial institutions and powerful corporations leaned on the Sentencing Commission when mandatory minimum sentencing provisions for 'organizational crimes' were developed. How much imprisonment can our citizens tolerate?

There are about 113,500 drug offenders in federal prison today and most took plea bargains because they were threatened with decades of prison time. There are growing numbers of drug lifers, like Sharanda Jones who’ll die behind bars, without public intervention. Please read Sharanda’s story.

The country’s federal crime policy needs thoughtful revision, not another half-baked witch hunt that victimizes more people than any justice it metes out. Eroded constitutional rights, need restoration. “I love my country, but fear my government,” sits on the lips of too many good citizens. Returning to rule of law, and transparent legal procedures would restore citizen trust. Without trust in our leaders and powerful legal institutions, citizens will battle, not stand with their leaders.

Who makes the laws, and for whom?

2008-10-15T12:05:00.000-07:00

Since the time I began proclaiming there wasn’t any justice in the war on drugs, nigh on a dozen years ago, our country and world has changed dramatically. Still, there is little substantive discussion about what went on back in the mid-1980’s when changes to our federal criminal justice system set us on the path we find ourselves today.

Raw capitalism requires wealth and consumption. Power can become unbalanced in a system such as this, so a democracy has to put in checks and balances for the people that don’t have wealth. When the system of checks and balances break down — good intentions go awry. Our federal criminal justice system shows glaring breakdown, so do our banks and financial institutions and the issues are deeply connected.

We were recently reminded by Joe Biden during the Vice Presidential debates that when “we don’t know what causes a problem, we can’t fix it.”

While the tough-on-crime Congress and Presidency of the mid-1980’s were beating their mostly white, hairy chests about fairness in federal law and about to get real tough, and mandatory on criminals across the lawless United States, corporate and business interests began a strategy that would coax five drafts in five years of wrangling before the Sentencing Guidelines for business crimes were put into law. Each draft was less, and less punitive.

Gone are the days of parole and hope of earned, early release. It is lock them up and throw away the key, but the US Sentencing Commission never recommended prison as a first choice for the banker, corporate polluter, development investor who ran afoul of federal law. Fines and probation were in the first draft and when the final draft was made law in 1991 — the fines were 97% lower than the Commission had originally recommended. And you could put your fines on credit so you didn’t have to do probation! So much for all that get tough — the only federal law violation that brought tougher sanctions was a drug violation. Five years for a couple of rocks, no prison time for stealing stock.

While the good citizens across the country were being sold a bill of goods about fairness and new, harsh justice philosophy coming to America, business interests wrangled out from under broad legal investigatory powers, punishments, fines and probation. The result? A conversation begging to find it’s way into mainstream headlines because this is part of ‘deregulation,’ and large part the cause of our growing unease, perhaps economic collapse.

For over 25 years, federal policing has been focused primarily on drug law violators and ‘street level’ crime, not on criminal players in business and financial institutions. After the Enron debacle, but not until 2004 would the Commission re-visit penalties for corporate, and business crime.

The interests of the public good has been long suffering while cherished legal principles continue to be destroyed in the name of a federal war on drugs.
New conversations about the over-haul of our criminal justice system are easy to identify, but seldom include critiques of the apparatus now in place, a Sentencing Commission that upholds draconian laws that punish the poor, even as corrupted financial institutions crumble, not just in the United States, but around the world.

For further reading:
Structural Contradictions and the United States Sentencing Commission, The development of federal organizational sentencing guidelines by Laurie J. Rodriguez & David E. Barlow.

Abstract: This research is a case study of criminal justice policy formation involving the development of federal sentencing guidelines for business organizations by the United States Sentencing Commission. It describes the decision-making process of the Commission and the influence of other groups and individuals on the process, and recounts their actions within the framework of structural contradictions theory. In the case of the federal sentencing guidelines, it is demonstrated that representatives of business opposed any legislation that was meant to limit the power of corporations or sanction the actions of their representatives, and therefore placed pressure on members of the Commission to eliminate or minimize such sanctions. The study confirms that the state, in an effort to foster the continued capital accumulation necessary for a healthy economy, acknowledged capitalist provisos and at least partially submitted to them during the development of the guidelines.

The State of the BOP

2008-10-01T11:46:00.000-07:00

This morning I read an email from Fed-CURE's elist. Kenny Linn posted the transcript of a hearing held in July, 2008—an appropriations hearing on the fiscal year 2009 Federal Prison budget request, shortages in the budget for 2008 and other matters. After reading the transcript, it was as Kenny Linn, promised -- a great read. We've posted the transcript here, and will provide a link to the government website that hosts this public information is found.

We need a system of earned, early release -- called parole, and/or increase of good time -- and won't have one until a citizen force has support of leaders in Congress. That was on my mind as I read the transcript linked above. I hope it will be on your mind, and you'll download and send it to your imprisoned loved one, or donate to our organization because people in prison with no one left on the outside, ask us to send them copies of important documents. The documents find their way to law libraries. Other prisoners direct their family members to the information online, and public education increases, along with pressure on leaders that can change sentencing law. Without your support, we can't serve as liaison between the public, our leaders and the millions of people that have found themselves incarcerated under our nation's dubious 'drug laws.' Now, back to this interesting hearing...

During questioning about whether or not prisoners receiving sentencing reductions due to the crack cocaine law changes were getting drug treatment before release, Representative Mollohan said, "And I am totally in favor of more sympathetic treatment to people who are in jail because of drug use offenses." Progress, yes, but when will republican and democrats alike ask why the federal government is in the business of jailing drug use offenders? Alan Mollohan is a democrat, represents West Virginia and has been in Congress since 1983.

Republican Representative Hal Rogers, hails from Kentucky's 5th district and a member of the House Appropriations Committee since 1982, and chairman of the Subcommittee on Commerce, Justice, State and the Judiciary since 1995. In short, another key person when it comes to funding US punishment policy.

Overcrowded Prisons

Mr. Rogers. Thank you, Mr. Chairman. Mr. Director, welcome to you and to all your staff. I have been told that you are 37 percent overcrowded. Is that an accurate figure?

Mr. Lappin. We are 37 percent over rated capacity.

Mr. Rogers. Over what?

Mr. Lappin. Over rated capacity.

Mr. Rogers. Do you mind if I call that overcrowded?

Mr. Lappin. Okay.

Mr. Rogers. What would be your target?

Mr. Lappin. 15 to 17 percent. That is our target.

Mr. Rogers. Over your rated capacity?

Mr. Lappin. And so, let me kind of put it in perspective.

What does that mean? What does 17 percent mean over rated capacity? That means that every cell in the entire Bureau of Prisons has two inmates in it, and we believe in that goal. It may be a long term goal, there is no way we are going to get there overnight, but our goal would be that we get to the point where cells that were built of a certain size, which is a standard size--you have got a couple new prisons in Kentucky, they are a standard size--for a cell of that size it is appropriate for two inmates to be housed in those cells long term. At 17 percent, every cell in the Bureau of Prisons would have two inmates in those cells.

Now realize there are some inmates that cannot be housed with anyone. So for those that require single cells, it is going to push into other cells three inmates. We are okay with that. There are certain inmates that we could temporarily house in that manner. Our target is 17 percent. Mr. Rogers. Well, if you are 37 percent over now and you want to be at 17 percent, that is a 20 percent difference.

Two person, three person cells? I wondered if Mr. Rogers and Mollohan and Frelinghuysen knew about the 'dorms'. Do our leaders know that thousands of federal prisoners are being warehoused like this?

I ask the question because Rep. Frelinghuysen asked Director Lappin if people released under changes in crack-cocaine sentencing were going to be monitored. Lappin explained supervised release. Why didn't Director Lappin just hold one of these big blow-up pictures of the dorms in federal prisons? In the camps, dorms like these are the norm. What if Congressional funders knew what a human warehouse looked like?

Harley Lappin warns that federal prisoners will likely have to be housed further from home, and that they expect growth of 5,000 to 7,000 federal prisoners each year over the next several years. In 1997 the ratio of guard to prisoner was 3.57, today mostly due to budget shortages and difficulties hiring, the ratio is 4.92 inmates to 'every employee.' The states have a 3.33 ratio.

The litany of horrors of this testimony is nothing new, but the federal bureau of prisons appears to have reached a new crisis and due to funding shortages there will be slow activation of a new federal prison in Louisiana -- FCI Pollock.

Race, age and offenses

Mr. Lappin. Let me give you an idea. About 56 percent of the federal inmate population is white, 40 percent is black, 1.7 percent Asian, 1.8 percent Indian. Of that it is 31 percent Hispanic, so a combination of some folks who are African American, black, Hispanic. Age has really not fluctuated much.

You know, we are around a thirty-five average age.

Mr. Frelinghuysen. Thirty-five years of age?

Mr. Lappin. I think that is what it is. It is pretty close to that. What has changed, though, the characteristics that have changed are--let me back up to types of offenses. We continue to see the majority of the offenders coming in for drug related offenses. About 52 percent to 53 percent of the offenses are drug related. And then followed by weapons at about 14 percent.

Mr. Frelinghuysen. That drug related figure is a pretty----

Mr. Lappin. I am sorry?

Mr. Frelinghuysen. That drug related is a pretty----

Mr. Lappin. 53.9 percent drug related.

Mr. Frelinghuysen. And that is, let us say ten years ago that might have been considerably lower, or?

Mr. Lappin. Well, that was probably in the middle of the whole War on Drugs. That is when we were ramping up, getting a lot of folks. But you know, if you go back fifteen years, it is much larger. We have seen a significant increase in weapons. Offenders coming into us with weapons violations, that is up to 14 percent followed by immigration.

I would like to have know what Representative Frelinghuysen, was going to say beyond, "That drug related figure is a pretty----." Lappin cut him off, twice in fact. Republican Rodney P. Frelinghuysen is serving in his seventh term as the Representative for New Jersey's 11th Congressional District and a senior member of the House Appropriations Committee.

Members of Congress want to explore and discuss, drug policy, federal policing and sentencing. It's clear to me. They get cut-off, and the witnesses confuse them, aren't talking straight and honest about problems that are very massive, expensive and can result in more, not less social destruction.

Other key subjects of the hearing included under staffing, the prison chaplain library 'project', recidivism, Stun or Lethal Fences, the crack sentencing amendment, counterterrorism work in federal prisons, drug treatment programs, inmate medical care, federalized sex crime, programs to reduce recidivism, health care costs, gangs and terrorism, contraband and staff searches, terrorists, non-US Citizen Inmates with an eye to the possible early release for purposes of deportation, Tele-Health, and Reimbursable agreement with BICE (a private corporation that owns prisons that hold non-citizens called long-term 'detainees' not inmates).

Advocates for federal prisoners, detainees and journalists covering over-reliance on incarceration, mandatory minimum sentencing, and recent US Sentencing controversies will find the transcript of this hearing important reading.

Drug Testing and Unreasonable Search

2008-08-15T21:20:00.000-07:00

I received an email from a friend today and sure that she would love it if I shared it with all.

Hi Nora,

I haven't written for a while. I have another thing that urks me.

The Bill of Rights tells us that we have the right to ask for a search warrant. The police officer has to show probable cause that he thinks someone may have drugs or alcohol on him to pull him over and give him a drug test or sobriety test. The police has to show good cause to go into your home and search for drugs.

Your body is more personal than your "personal effects" written in the Bill of Rights. If an employer asks for a drug test, he wants the urine specimen that is inside your body. He should have good cause to ask for it. He should assume you are under the influence if he is asking for the drug test. You have the right to say that you want a search warrant signed by a judge. If the employer has a warrant, they can collect the urine specimen that comes from inside you to see if you have drugs in your system. If there are no drugs inside you. You have the right to sue them for harassment. This is enough. It is an invasion of privacy. There are less Americans who do not do drugs than do drugs. I'd like to see the percentage of how many employment drug tests are unfavorable. It's a waste of time and money. It is a disgraceful thing for us to do. It is shameful thing to make us do it.

If they want to see if we "ever" did drugs, they can take a hair sample but then again, they would need a search warrant and they would need probable cause. If we do not appear to be under the influence during the job application process, why must we have to do this?

The Bill of Rights is already written, let's exercise our rights and use it for this, too!!

I'm sick and tired of having to do a drug test just to get a job. I'm 54, not a drug user and want our human and civil rights back!
Not to mention our dignity!

Sandra Bouchard

Determinate Sentencing's Quandary

2008-08-12T11:37:00.000-07:00

By the time law students and criminal justice majors are hitting the books, and finding these summertime messages about 'real offense guideline sentencing,' exploring the way that the federal government's broad application of uncharged, even acquitted conduct can ratchet up a sentence, complete with stale criminal histories, tales of informants, etc and all — I'll be sleeping under the stars and kayaking in a nearby river.

I want to leave readers with something meaty in my absence. Ordered from public archives, the LEAA Library, a former prisoner volunteered to scan it, and we've made it available on our website. It's called "...WE ARE THE LIVING PROOF..." The Justice Model for Corrections and was authored by David Fogel in 1975. Dr. David Fogel was an Illinois Correctional Official, one of a successive few corrections officials to promote administrative justice models, now called 'determinate sentencing' in reality, but called 'Sentencing Guidelines' in practice.

WE ARE THE LIVING PROOF is 328 pages, and 33 years old, but crucial academic history as to how sentencing revolutionized in 1984. The LEAA library, or collection entire is likely significant because as anti-prison abolitionists of the day warned — LEAA, the Law Enforcement Assistance Administration was to police and prison officials, what the pentagon is to the military today. Yet the author, David Fogel was a self-proclaimed 'fortress prison abolitionist' -- and the plot thickened for me because I'd long had a hunch that 'progressive' ideas went real bad, and having a brother 19 years down on a guideline (wink, wink) sentence of 27 federal years, I read Fogel's work with far too much fascination. And reading it, I kept thinking about all the prisoners who've wondered who cooked up parts of this mess we are in, and legal students, and advocates might appreciate the thought and sentiment behind what has become an entirely revolutionized federal sentencing system.

In some fairness to Fogel, he warned that all of his ideas would have to be implemented, and if piecemeal adoption took place -- would only create what is easily illustrated in alarming ease -- the United States has a "carceral crisis,' of epic proportions.

One of Fogels goals was to abolish parole and have fixed sentencing -- that this system would respect the keepers and convicts. Writing of and to his critics, he wrote long into his manuscript:

Even assuming the relevancy of our claim that the rationalization of parole along lines of a punishment-deterrence-justice model could bring more safety, sanity and fairness to prison life, some have argued: "Why mess with the system?" Some critics reason that even if the present anomie in sentencing and parole appears to be unjust, most prisoners average only a two year plus stay; and the more the appearance of unfairness is exposed, the more tightening up will be legislated. This might, in their view, bring more convicts into the system and keep them longer. Therefore, modernization may contain the seed of an unintended consequence which could operate against the cause of lower numbers of prisoners with relatively shorter average stays as compared to actual sentences. Hence the rationale becomes: "leave it alone, you can't really affect the onerousness of prison life anyhow, and you may open up a Pandora's Box for conservative legislators which will produce draconian prison stays (actual) rather than merely the semblance of long sentences as we have now." This is not unattractive. It is even a bit seductive. But it is not convincing on several grounds.

Fogel goes on to explain that high levels of imprisonment would cost too much, and legislators who promoted harsh sentencing would easily be voted out of office. Yeah, this smart man -- esteemed and highly regarded in his field, could never have been more wrong, and critics more prophetic.

This old writing, in support of fixed, determinate, mandatory sentencing, called guides or otherwise should prove interesting for lots of people intent on spending time in their futures creating new federal criminal justice laws and policing policy.

When we ask for returning parole, or forms of earned, early release, we need to know that we confront more than sentencing law, we confront sentencing philosophy, too.

Vulnerabilty and Winds of Change

2008-07-27T13:35:00.000-07:00

We had a windstorm a couple of weeks ago. It was very dramatic, the winds were predicted, but no one thought that a full blown 'inversion' would descend from Canada as rapidly as it did, and bring 55 - 60 MPH gusts that sustained and kept on for over three hours.

We watched small and large objects fly by the windows. And with trees all around the office of the November Coalition, and a 100-year old building, I wondered what would happen.

In the end, there was a lot of damage around town, and wild fires ranged in most directions, we were declared a disaster area. On November's grounds, all that was lost were things that weren't solid to start with. Down was the decorative wall we left when we took an old woodshed out when we moved in four years ago. The barnwood will be put back sturdily, on the same end of a new wood shed this autumn. It's okay to re-think something old, and use it if it's purposeful. But, it can't be stood up halfheartedly, because it 'looks good'.

We lost two trees that weren't sound -- one a maple tree that fell the day we took ownership. Lucky for us we'd moved a bakery rack outside, as it kept the tree from hitting the roof. We let the stump grow two branches. Vulnerable things, fall down in winds of change. But, we don't usually get this kind of wind storm.

And that day we surveyed our damage after the dramatic, unpredicted winds, I thought of our sentencing system. I'd been studying and writing about new thoughts I had on it -- when things began to fly by my windows.

There is more than one key place where the US Federal Sentencing system isn't on solid footing -- not scientifically, not morally, and not constitutionally.

With regard to winds of change, the vulnerable places could easily fall. The two tiers of federal sentencing, that no state will pursue in unique manner as the 'feds,' is like our two pronged maple tree, here. Because two disparate branches could grow out of the broken trunk -- does not mean it can stand -- for long. The taller they got, the more vulnerable they were. We are likely near that point in federal imprisonment and sentencing, and why these vulnerable areas should be studied by academics and grassroots advocates alike.

Good Sunday to all, and ponder with me and others -- the vulnerable places of law -- that a wind of change could bring down.

Uncharged and Acquitted Offense Sentencing

2008-07-21T13:27:00.000-07:00

Last week, I found a July 3, 2008 “white paper” and enjoyed studying it over the weekend. Deconstructing the Relevant Conduct Guidelines: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing by Amy Baron-Evans and Jennifer Niles Coffin is a welcome read based on historical records, as well as legal cases and US Sentencing Commission commentary. It's not written for the lay-person, but imprisoned people aren't really lay-people, and again we urge family members and friends of federal prisoners to send a copy of this 58-page document to a federal prisoner you love. Don't have one? Contact our office and we'll provide you with the address of a federal prisoner who'd appreciate this information.

“There is nothing in the legislative history of the SRA to support the use of uncharged and acquitted offenses in calculating the guideline range, and much that indicates this was contrary to congressional intent.”

According to experts Evans* and Coffin, the first Sentencing Commission didn’t have “uncharged and acquitted offenses” on their minds either. Evans and Coffin detail the process and early intent of 1984's Congress, and the Commissions’ first years of work revealing that it wasn’t until 1992 that the Commission “specified for the first time in the guideline itself (as opposed to commentary alone) that for the purposes of determining relevant conduct for jointly undertaken activity, no conspiracy need be charged.”

Evans and Coffin point out the Commission has never been able to explain how they transferred two Supreme Court cases (Williams from 1949 and the Tucker case of 1972) to relevant conduct sentencing, when these cases were from the era of indeterminate sentencing. The new sentencing system was determinate, an entirely different philosophy of sentencing. The old cases should have been rendered as moot as indeterminate sentencing had been.

The Commission justifies the"Real Offense Guideline Sentencing" system by describing it. That shouldn't cut it as legal tenets go. Congress could take notice, perhaps a couple of presidential candidates, too.

We’re told that the Parole Commission, before it was abolished as part of the 1984 SRA, “refused to take acquitted conduct into account as a general matter due to the ‘perceived unfairness’ of this approach.” Not one state sentences people to uncharged and acquitted conduct -- another telling fact.

From the lower standard of proof used to justify sentencing people to acquitted conduct, through lack of Congressional review, from the beginning unto this day there has been a lack of applied social and legal science — the authors make clear points - with historical citations, so it's far more than a rant.

The Commission has been historically unresponsive to its critics, doesn’t clarify confusion for the courts, unless the Commission thinks the “courts err on the side of leniency." Past transferring power to sentencing to prosecutors, these authors know the Commission has created unwarranted disparity — and with it — disrespect for law.

* Amy Baron-Evans is National Sentencing Resource Counsel to the Federal Public and Community Defenders. She represents Defenders’ interests in matters of sentencing policy, provides litigation support in sentencing cases before the United States Supreme Court and Courts of Appeals, and provides training in sentencing advocacy. She is a cum laude graduate of Harvard Law School and clerked for the Honorable Hugh H. Bownes of the First Circuit Court of Appeals. Ms. Baron-Evans is a former Co-Chair of both the Federal Sentencing Guidelines Committee of the National Association of Criminal Defense Lawyers and the Practitioners’ Advisory Group to the United States Sentencing Commission.

** 15-Year Assessment of Guideline Sentencing

Who's Fighting Wildfires?

2008-07-14T11:51:00.000-07:00

Over half the firefighting force in California is prisoners. This is a great story by Current TV, the Heroes of the California fires. Great interviews.

Getting Real About Real Offense Sentencing

2008-07-11T13:34:00.000-07:00

Getting Real About Real Offense Guideline Sentencing

A goodly number of people reading this ‘blog’ have a loved one serving time in federal prison, and doing a goodly portion of time on “Real Offense” — not Charged Offense. I remember expecting to hear that my brother was receiving a mandatory minimum of eight years. I thought when that moment came, I’d dissolve. When the judge said 330 months, my mom looked at me confused, I did some quick math, and she nearly died on the spot.

How did eight years, even his attorney thought would be eight or nine years, become more than 27 years in federal prison? Years later, a juror asked me how that happened, too -- and when the juror found out some of the details of 'so-called witnesses' -- the juror filed an affidavit with the sentencing judge. It would take me awhile to understand that the reason was an entirely new federal sentencing system, and a provision within it, a brand new Sentencing Commission dubbed “Relevant Conduct”, a new legal provision and term that would drive “Real Offense Sentencing Guidelines.”

With new federalized crimes––specifically drug, fraud, and firearms offenses––quantity-driven or ‘aggregatable offenses’ (the amount of drugs involved, money defrauded, or firearms seized) determine the sentence. Drug cases differ in that the amount of drugs, or combination of drugs, don’t have to be proven at trial, or admitted to in a plea bargain, and goes even further to look at a defendants' complete life's history, and much more!

If a jury says ‘not guilty,’ the judge can and does sentence the accused to that crime nonetheless. The prosecutor holds discretionary power. A defendant can plead guilty to one set of charges, and be sentenced to a whole string of others. The United States Sentencing Commission's 15-Year Assessment, admits that "The relevant conduct rule has been called the "cornerstone" of the guidelines system, and also say that "sentence begins at investigation." (Part I, Pages 16-77 are of particular interest to this subject).

To this day, I don’t think people realize how many years in prison people are serving for the very ‘crimes’ the juries didn’t feel the prosecutor proved, or crimes people "took responsibility" for.

How many years are being served for ‘acquitted conduct’ that shows up on the “Pre-Investigation Report?” And why didn’t fraud cases soar, or firearms, when these changes of law were made in the 80’s? Does corporate fraud devastate entire communities? Ask those folks living in the communities around ENRON headquarters if fraud is devastating. Ask ENRON shareholders?

Why did only drug imprisonment soar?

Only drug imprisonment soared because the corporations didn’t let the federal government go very far during the grid-making process of sentencing, or earlier investigative processes either - the policing end. Business pressured the Commission to ‘back-off’. Back off whom? Executives, CEO’s of large and wealthy corporations. There’s research on that subject available for a fee, wherein Rodriguez and Barlow show how business groups pressured members of the Commission to eliminate or minimize legal sanctions.

The big, brand new sentencing system that experts still crow about as “Modern Sentencing” is still bad 30 years later. And it’s still punishing the non-violent drug offender the most. One look at this incarceration chart — my imagination soars — doesn’t it look like ‘the finger’? Yeah, the non-rich are certainly ‘getting the finger’ these days.

David Yellen of Loyola University (Chicago) School of Law put forth an interesting paper entitled: Reforming the Federal Sentencing Guidelines’ Misguided Approach To Real-Offense Sentencing. Yellen is astute, and very politely discusses this vitally important issue.

Aside from studying legal papers into the night, I watch entertainment TV if a story appears compelling. Watching NBC's Dateline the other night and saw the story about the couple who went out with a dive-boat to explore the Great Barrier Reef. Left behind by the boat’s crew, they spent an evening, night and terrified dawn drifting in the open ocean before a miraculous rescue came. Both of them were terrified they were going to be attacked by sharks, but neither would say the “S” word. To say the “S” word would take them over the top of terrified, unable to cope with their terrible predicament.

Writers and critics of Relevant Offense within Real Offense Sentencing Guidelines are sort of like the couple in the ocean. We have the “S” word there, too. Not unlike sharks in their power to devour, they’re called snitches, to be precise, and for best purpose, called the 'Rewarded Informant" today. Their tales show up in police offices through various means. Some people are out of work and know the police pay for ‘information from the streets.’ A person can make a regular living at it. Other rewarded informants appear in the form of a friend, the one who gets caught first, or an acquaintance who gets caught and won’t "rat-out" his friends. A friend of the friend, from years ago, fingers you, and rewarded words are believed by the prosecutor and/or the authority who writes and influences the Pre-Sentence Investigation Report that includes a calculation of federal prison time that must be served.

The sharks of the drug war show up before sentencing. The rewarded informants' words, show up to convince judges to allow militarized police to carry out a no-knock drug raid. They show up at the grand jury, and trial, and the government calls them ‘witnesses.’ They show up at sentencing for the relevant conduct story that puts the convicted or plead-out person into the "Real Offense Sentencing Guideline," and that's where a defendant really gets nailed.

What’s eating us, or might eat you, needs to be talked about, and outside of academic circles. Okay, we can't say the "S" word, but we certainly can talk about the troublesome informant system. Looking hard at relevant conduct, we come smack in the face of rewarded "testimony" via the informant — not proven before a jury to be true — but proven to add more years than most charged offenses do. That’s not justice.

I attended the Second Roundtable, convened by the ACLU, to explore how to make changes in law to correct some abuses within a legal system dependent on desperate informants to ‘solve crimes.’ Davy-D, a father of the hip-hop social change movement, was there, and at one point lamenting that we’d been on the defensive since people ‘on the street’ began to teach about the workings of the informant system––and the threat to public safety and social order that such a bad policing system is.

Leading fellow citizens down the road to greater understanding of the Federal Sentencing System, including Real Offense Sentencing Guidelines, is one way to find some high ground on the slippery issue of informants and policing; informants and prosecutors; informants and the sentencing judge, and informants on our society entire.

Now readers, beyond difficult legal papers on the problem — what are your ideas about ‘translating’ difficult concepts of law for the average person-on-your-streets? Or do you have a question? We're listening. Send us email, or leave a public comment by selecting the comment link below.

In Struggle,
Nora
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Drug War Sentencing

2008-07-09T13:43:00.000-07:00

Sorry about being the world’s worst blogger — on regularity that is. It’s not a regular summer, except for one thing - we still get a lot of mail from prisons. Wally Parades wrote fairly recent:

Dear NC:

Many years have passed since I last wrote your organization… I am presently 64 years of age. I am serving an imposed sentence of 360 months for the non-violent, victimless offense of a single delivery of a controlled substance to a paid, contractual, criminal informant. No money ever exchanged hands, and not a single person witnessed the alleged offense. Yet, a jury believed the paid testimony of a person making a living by accusing others.

This September I begin my 20th year in prison. Over the past two decades all of my family, but one sister has passed away. For two decades I have listened to the hopes and dreams of legislation to come, that would put an end to these draconian sentences.

For years, elderly offenders such as I, looked hopefully to an elderly offender law that just might afford us our last years with the few loved ones we have left. The Second Chance Act of 2007 has a very limited program, not subject to law, but subject to the discretion of the Federal Bureau of Prisons.

The US Sentencing Guideline’s in Chapter Four, clearly exclude convictions over 15 years old for establishing a criminal history score, yet the Second Chance Act permits ‘any’ prior conviction of violence to exclude an inmate’s eligibility. More so, the Bureau of Prisons uses relevant conduct, and acquitted conduct. [As the federal judge must use in sentencing —Ed. Note] An individual charged, but exonerated of the offense, still has a history of violence… Respectfully, Wally

Today, I ran across an article from the Washington Times, June 29, 2008, "Revelant Conduct" Can Add Time to Sentences. It was great to see one. Steven Kalar, a senior litigator in the Northern District of California's Office of Federal Public Defender believes the Supreme Court will take up the issue soon. Here's a small excerpt:

"The point, he [Kalar] said, is that a criminal defendant might not benefit greatly from acquittal of all the charges in a major conspiracy case except for a seemingly minor count.

Prosecutors still can point to 'relevant conduct' - the acquitted charges that jurors rejected or other accusations the jury never heard - and ask a judge to mete out a tougher sentence.

Mr. Kalar said that while juries must make their findings based beyond a reasonable doubt, sentencing judges instead can base their findings on a preponderance of evidence."

John Chase, long time advisor to the November Coalition was exploring the horror of "Relevant Conduct" with me just last week. We were wondering together, why this part has been so difficult for people to grasp, for if they did, they'd reject this part of federal sentencing law. It would scare people so much, they'd demand immediate change. John had a simple, but likely truthful explanation.

Problem explaining these two concepts is 'cognitive dissonance'. People live their lives believing a certain thing, then someone tells them it ain't that way. They simply don't hear the new information.

Orrin Hatch did it back in 1998 when the 3 judge panel of 10th Circuit ruled that testimony rewarded with promise of leniency unconstitutional. Orrin's instant reaction was something like ".... The entire federal system relies on it", and the 10 judge en banc Circuit agreed with Orrin. It was such a shocking idea it must be wrong. (His exact quote is probably archived somewhere at Media Awareness Project.)

Same way the idea that the sentencing guidelines should be guidelines. "What, you mean they're not?" Cognitive dissonance again. (Humpty Dumpty said "When I use a word, it means just what I choose it to mean - neither more nor less.")

Same problem with 'real offense' and 'relevant conduct'. Yes, it is amazing...

Thanks John, and for those still with me, plug your nose and dip into the world of word-spin, where the words do not mean what would ordinarily come to mind when you saw them. Real Offense Sentencing and Guideline Sentencing are samples of those, so remember the guidelines aren’t guides, but mandatory sentencing ranges, and the ‘real offense’ and ‘relevant conduct’ tells the stories of rewarded informant(s).

The first mention of “Real Offense” I can find in our sentencing and penal history is a story out of 1833 Sing-Sing prison, uncovered during a special legislative investigation. Guards wove wire into their whips and as men arrived to begin their sentence, they were stripped, then lashed across their genital area “for alleged offenses committed previous to conviction,” and other assorted things. I found that in an old historical piece, "We Are the Living Proof," written by Dr. David Fogel, one of the designers of our "modern era of sentencing."

Today relevant conduct, and real offense pushes drug offenders sentences so high, and so often, that it “can have a dramatic impact on sentence length, often eclipsing the impact of all other sentencing factors.” That's from Professor Berman's writing on this very subject, (page 106) A More Perfect System: Distinguishing Offense Conduct and Offender Characteristics.

When the Sentencing Reform Act was passed 1984, the United States Sentencing Commission, a new governmental entity was charged with implementing the new sentencing system. The newly formed Commission was divided, hurried and a draft became law. I found that assessment of the day, in a gem called, From the Ne'er-Do-Well to the Criminal History Category: the Refinement of the Actuarial Model in Criminal Law, by Benard E. Harcourt, Professor of Law, beginning on page 121.

If you have the ability to print these documents, and send them to a federal prisoner, suggesting they share it in the law library of the prison if possible --that is one way of creating more discourse, between academia and people effected by the laws. If reforms may be coming, if the Supreme Court will further rule on the validity of prison sentences based more on 'informants' bartered words' and 'acquitted conduct' then it's time for all the people in the middle to weigh in, too. The average person in the United States welcomes understanding.

Your comments, your stories of how your loved one is serving mandatory 'guideline' time on acquitted conduct -- called "relevant" and "real offense" continue to be important, and you can leave comments below.

We'll be discussing this subject in much more length, thanks for following along.

In Struggle,
Nora

Understanding the US Sentencing Guidelines

2008-05-14T11:46:00.000-07:00

While studying "real offense" and "relevant conduct" and how these tangled legal terms have turned into tangled laws, I ran across one of the best papers explaining some the fine points of the US Sentencing Guidelines I've ever read. It was published this month and this year.

It's entitled, Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip, and written by Mark Osler a professor at Baylor Law. We are sending a few copies out post haste. I'm hoping that many federal prisoners will have the opportunity to study it, then put this important "reform document" in the prison law library. It's an easy read (as legal papers go), about the gruesome federal sentencing laws, and those aren't easy to come by — good papers on the US Sentencing Guidelines, that is. I promise you, -- your imprisoned loved one will thank you profusely for downloading it, printing it, and sending it to them. It's 50 pages.

Tom Murlowski, November's Office Production Manager is printing a few copies that will go out in today's mail. We've some key legal thinkers inside the wall and you might be related to one we don't know. We try to get some of the pertinent information to at least some imprisoned members. We are hoping this blog will assist reaching more imprisoned members, with your help. We'll list only the best of 'reform minded' documents. That said, let your loved ones know, comments on these papers are welcome. Our address is: November Coalition Foundation; 282 West Astor, Colville, WA 99114 and we look forward to comments.

Most authors of law make tinkering suggestions, after big beefs about irrational laws. Not the inestimable Professor Osler who also tells us that things are worse than ever by explaining, "The result, even after Booker, has been the most restrictive sentencing system in the nation—one that imposes more uniformity and restricts judicial discretion more severely than any of the 50 state systems that overlap with federal courts in their common project of regulating crime."

Within this rigid system are fast track programs and substantial assistance departures, I've tried to explain it -- any uniformity is turned on its head, in various forums, and formats, for a long time.

Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip does the job better than I can do today, and for me, it darn well beats having to read my own awkward explanations when I search for inspiration and more knowledge on the subject!

Law students, constitutional defenders and anyone interested in Sentencing Guidelines, especially with regard to the federal system, will want to study Professor Osler's work, too.

Scrapping the guidelines is one of his suggestions, another is to have Congress return to traditional goals of sentencing and move away from the broad dictates, strange special interests in certain crimes over others, and close the trap doors -- the ability for Congress and the Commission to respond inappropriately to unscientific and biased pressures.

Osler asks, "Do we want an irrational and pointless construct at the center of our sentencing structure, even if it is not strictly mandatory?"

Then answers, as would I, "I would hope not."

Lastly, Osler proposes Congress could start over again with fewer goals, fewer advisory guidelines -- from scratch. A"massive effort," but "worthwhile," one he suggests.

Osler believes that such a process, though "massive" would allow thorough "rethinking of charge v. real offense conduct as the basis for sentencing," and host of other issues that November Coalition has long brought to public attention, including the absence of rehabilitation in the federal system, even though it's supposed to be a goal of US sentencing.

Osler's hope will only have hope if the enforcers don't outnumber other citizens, the stakeholders who should serve on the US Sentencing Commission and have been excluded thus far. If Professor Osler was at the head of the table, along with a few former prisoners, social workers that serve people released from prison, social scientists, not just their data, I'd think that effort would bring us measures of justice.

The cost of our 30 year experiment can't be borne, so a 'massive effort' now could prove to be the massive solution to our massive imprisonment problem, so we shouldn't be afraid of big jobs of solid reform. We really don't have a choice -- our country doesn't have disposable income anymore.

Last, but best is Mark Osler's explanation that parole and good time provisions were instruments that Congress and Sentencing Commission had to further their goals of justice -- by abolishing parole, and reducing good time to a pittance -- all they have is sentencing. Really, no one wants to miss reading this important document.

People in federal prison should study this, anyone interested in federal law -- so if you are a loved one of a prisoner -- please download, print it out -- study it with loved ones, friends, and join a public discussion about what should replace 'the mess' -- we find ourselves in.

In Struggle,
Nora

BOP Suspends Use of Ion Spectrometry Drug Testing

2008-04-28T11:45:00.000-07:00

Hello Friends:

The good news for April was the ION detection or Ion Spectrometry devices used on people visiting imprisoned loved ones is over -- for now. Citing computer malfunctions the manufacturers are working on fixing, a memo posted at Seagoville Federal Correctional Facility can be read here .

A lot of people worked on this issue, from prisoners to their loved ones who were turned away due to testing positive for illegal drugs. We of the November Coalition have been working on publicizing the problem, and contacting our leaders for action for many years.

The bad news is the Bureau of Prisons has revised some visitation policy. You can download the Program Statement -- in which the Bureau of Prisons wants us also to know -- we don't have any constitutional right to visitation: 5510_012.pdf

Troubling provisions that would allow for a visual strip search of people that want to visit their loved ones in prison, and also new policy that would allow a visitor to have to be drug tested at any time before, during or after the visit are some of the details in the document of new federal prison policies.

Meanwhile, the people that serve the prison machine, making regular delivery of items to the prison - or visits for many reasons are not subject to drug tests, or strip searches. People who have regular access to the prisons, and that includes guards are the way most drugs get into the prisons.

For people that have the unfortunate situation to have a loved one in prison to bear the brunt of policies designed to keep illegal drugs out of prison isn't any surprise, but an injustice that continues.

If the federal bureau of prisons drug tests you, or subjects you to a visual strip search, because you wanted to visit your loved one, we want to know

To see what a visual strip search by the BOP entails, check out this video.

To see human behavior and bad policy colliding watch this one.

It's not too early to complain, in fact before we are forced to expose more scandals involving our mothers and prison visitation problems, citizens can ask their federal judicial leaders to look at the new program statement. Do taxpayers want to pay to drug test moms, fathers and children of federal prisoners? Do they want to sanction strip searches of us? I bet not.

You might notice I moved the Blog to E Blogger in hopes that comments won't be hijacked by spammers. I look forward to blogging regularly, listening to your shared comments on a better program than previous.