Californians are trying to tax and regulate marijuana, through such measures as the Tax Cannabis 2010 ballot initiative and Assm. Tom Ammiano’s AB 2254. Meanwhile, legislators in the Rhode Island House of Representatives have also introduced a bill to legalize marijuana; text here: http://www.rilin.state.ri.us/BillText/BillText10/HouseText10/H7838.htm. H7838 would regulate marijuana wholesalers, retailers, and home-cultivators, and set a tax of $50/ounce like CA AB2254. Looks like there’s a race on to see who can begin reaping tax revenues, first: at least 6 states (California, Rhode Island, Colorado, Washington, Oregon, Nevada) will consider taxing and regulating marijuana by the end of 2012. H7838 specifically invokes corrections/enforcement savings as a reason for regulating marijuana: “There were more than 847,000 arrests for marijuana offenses in the US in 2008, which is more than Rhode Island’s entire adult population.”
Justice Policy Institute Bashes Budget
Today the Justice Policy Institute issued a press release criticizing President Obama’s budget proposal. The new budget would increase funding for law enforcement and prisons, and reduce funding for alternative justice programs. JPI has released a full fact sheet, here. The text of their release follows:
Group Criticizes Obama Administration’s Budget Plan to Increase Policing and Prisons
Justice advocates disturbed by proposed $29 billion for ineffective and unfair policies
Washington, D.C. – The Justice Policy Institute released a factsheet today challenging the Obama administration’s proposed Fiscal Year 2011 Department of Justice budget. The Administration is asking for $29.2 billion, which includes more funding for law enforcement and prisons, and reductions in spending on juvenile justice programs that have been proven to be effective at getting youth back on track for positive life outcomes. A hearing for the proposed budget was scheduled before the Congressional Budget Committee, Subcommittee on Commerce, Justice, and Science on February 11, but was delayed and is in the process of being rescheduled.
“The Administration’s rationale for dumping more money into COPS (the federal Community Oriented Policing Services program) is that we need more police while the economy improves in order to prevent crime,” stated Tracy Velázquez, executive director of JPI. “That doesn’t pass the smell test. Crime rates have been falling for the last few years and we’ve already put a billion stimulus dollars into more policing last year. If the Administration wants to buy jobs that will improve public safety, they should put that $600 million into struggling communities, schools, treatment, and social services.”
Velázquez also noted that the proposed budget will likely result in increased incarceration costs for states, with only marginal public safety benefits. This is at a time when financially-strapped states are trying to downsize prisons through such mechanisms as greater use of community supervision and more diversion programs. While Velázquez praised funding for the Second Chance Act, which helps formerly-incarcerated people with their transition back to the community, she added, “More money should be focused on programs that help to keep people out of the criminal and juvenile justice systems in the first place.” These alternatives include community-based prevention and early intervention programs for youth, education and employment training, and substance abuse and mental health treatment services.
Some of the key findings in the newly-released fact sheet http://www.justicepolicy.org/content-hmID=1811&smID=1581&ssmID=87.htm include:
* Byrne Justice Assistance Grants: JPI found that while the $500+ million proposed for this program can be used for prevention and education, in reality most money goes to law enforcement. Research has shown that increased law enforcement results in the least-effective solution-higher drug imprisonment rates-while this money could be more effectively spent on community drug treatment.
* Community Oriented Policing Services (COPS) Funding: The Administration is requesting $600 million in hiring and retention grants for police officers, purportedly anticipating a rise in crime as the economy recovers. Such increased policing is likely to have a concentrated impact on communities of color, who are already disproportionately impacted by the criminal justice system. JPI suggests this money would be better spent on creating jobs, housing, and treatment programs for increased public safety.
* Juvenile Justice Programs: Funding for essential juvenile justice programs has been declining for years, and the Administration is proposing a $133 million decrease this year. Evidence shows that youth who spend time incarcerated have decreased educational and employment opportunities. Currently, there are more than 90,000 youth imprisoned in the United States. Investments in prevention programs, by contrast, are associated with improved public safety and better life outcomes for youth. “At a time when the Administration can’t seem to find the time to hire someone to run the Office of Juvenile Justice and Delinquency Prevention,” stated Velázquez, “this lack of commitment to funding core programs that protect and help youth is discomfiting.”
* Drug Courts: JPI commends the federal government’s interest in pursuing treatment as an option for people with substance abuse problems as an alternative to incarceration. However, drug courts, and the criminal justice system generally, can’t and shouldn’t be used as a substitute for community-based treatment services through the public health system, where it is most effective and appropriate.
* Adam Walsh Act: Having failed to bully states with threats of funding cuts if they fail to comply with the Adam Walsh Act, the federal government is adding a “carrot” to the “stick”: $20 million to help states implement the Sex Offender Registration and Notification Act (SORNA). A number of reports have found little correlation between the use of sex offender registries and keeping children safe. In addition, broad compliance with SORNA will increase the number of people who cannot meet their basic needs (housing, employment), which is a major risk factor for recidivism. Especially hard-hit are youth on registries that may be barred from pro-social activities that can have a positive impact on improving their lives and on public safety.
* Increased Funding for Prisons: Increased funding for prison beds will likely lead to higher prison populations and expenses without significantly improving public safety. In fact, most states are reducing prison populations due to the current economic crisis and are seeking more effective solutions.
“While I hesitate to grade the Administration,” concluded Velázquez, “we certainly were optimistic that it would use the research that groups like JPI have done over the years in developing its justice budget. We hope the Administration will more seriously engage the reform community in the budget process in the future so that budgets and policies will be prioritized to one day allow the United States – land of the free-to leave behind the shameful moniker of being the world’s largest jailor.”
To read JPI’s factsheet: The Obama Administration’s 2011 Budget: More Policing, Prisons, and Punitive Policies, CLICK HERE <http://www.justicepolicy.org/
The Justice Policy Institute (JPI) is a Washington, D.C.-based research and policy organization that promotes fair and rational justice policies. For more information, please visit www.justicepolicy.org
Policy Implications of Marijuana Legalization
When California taxes and regulates marijuana, how will other state policies be affected? JOIN US 12p-1p Monday 2/22/10 at UC-Hastings Room A (198 McAllister St.) for a panel discussion featuring:
Prof. Hadar Aviram, UC-Hastings College of the Law
Prof. Alex Kreit, Thomas Jefferson School of Law
Quintin Mecke, Communications Director, AB390 sponsor Assm. Tom Ammiano
Sure enough, not just CA
Check out this ambitious program: PRIOR, Policy Research Institute for the Region, at Princeton will host “Reforming the Corrections Environment: We Can’t Keep Paying these Costs–Can We?” on 3/5/10.
princeton.edu/prior/events/conferences/reforming-the-corrections-2/index.xml
Michael Jacobson for Vera Institute of Justice… Marc Mauer for The Sentencing Project… Secretary James Beard for the PA Dept of Corrections… anyway I wish I could go!
NYT on Compassionate Relief puts CA in perspective
The New York Times has a story today on compassionate release for inmates who are physically or cognitively unable to present a threat to society. This paragraph stands out:
“In California, where federal judges ordered the state to cut the prison population by 40,000, three people were granted compassionate release last year. In Alabama, where prisons are at double their capacity, four sick inmates were let out on compassionate release in the 2009 fiscal year; 35 other prisoners in Alabama died while their applications were being reviewed. Since New York adopted medical parole in 1992, at the height of the AIDS crisis, 364 people have been released.”
The situation may be egregious in New York, and proportionately worst in Alabama, but by sheer quantity California’s prison crisis is most dire. What values are we pursuing, what metrics are we optimizing, by paying for incapacitated inmates to die in prison rather than at home?
Kristof on Humanity
In case you missed Nicholas Kristof’s column in the 1/27/10 New York Times, it’s right here. Kristof relates statistics and instances of violence in prisons, especially sexual violence, especially in juvenile prisons, especially by prison guards. “I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.”
Of course, it is a premise of this blog that our prisons are in a financial crisis. But as Kristof indirectly recognizes, sometimes the economic angle lets me temporarily forget the human angle. Rights that we can often take for granted in this country, including physical safety, are daily struggles frequently lost in our prisons. The real human costs of our failing correctional institutions are sickeningly deplorable, and prison reform will always be about more than money.
Sue Dealers For Selling You Drugs?!
This is more civil justice, but so startling and intriguing I had to say something. According to the The Gadsen Times of Alabama, a state representative there has just introduced a bill that would provide a cause of action “for someone who has lost a loved one due to a drug overdose” against the dealer when “the person who sold the drug has been convicted of distribution, manufacturing an illegal drug, or other similar charge.” The proponents, parents who lost a child to an opiate drug overdose, cite deterrence as their policy motivation.
While I’m sorry for this family’s loss, this argument widely misses its target, even leading aside overarching concerns balancing free will and personal responsibility versus paternalism. As if criminal penalties, the loss of the right to liberty itself, would not deter someone who would be deterred by monetary penalties. Further, under civil asset forfeiture laws, someone already convicted of selling or manufacturing drugs is already potentially liable for basically everything they own. To return to personal responsibility, is our next step start suing alcohol producers for alcohol poisoning or drunk driving fatalities?
California Supreme Court Decides the Kelley Case
On January 10, the California Supreme Court ruled on People v. Kelley that legislature’s limitations on medical marijuana possession and cultivation are unconstitutional, except for as to their defensive purposes.
In November of 1996 California voters passed Proposition 215 (“the CUA”) which provided official legal protection for the medical use of marijuana in California.The CUA decriminalized the cultivation, possession and use of marijuana by “seriously ill” patients with a doctor’s recommendation and also allows the cultivation and possession by a patient’s caregiver. Its stated purpose was to ensure that “seriously ill Californians had the right to obtain and use marijuana for medical purposes” when appropriate and recommended by a doctor, and to ensure that patients, their caregivers, and doctors “are not subject to criminal prosecution or sanction”. While the CUA was a landmark step, it is an unclear, principal driven statute, which caused a list of difficulties: one was that it established no way for medical marijuana patients to verify their legal status—patients were arrested because police officers were not required to trust that patient’s recommendations were valid.
Due to various problems with the CUA, Senate passed The Medical Marijuana Program Act (“the MMPA”) effective since January 1, 2004, which supplemented the CUA without supplanting it. Among other things, the MMPA set base guidelines for maximum medical marijuana possession. As base limits, they established the minimum quantities a county can set as possession limits; a county was free to set limits exceeding these. Illustrative are Humboldt County’s guidelines, which include an outdoor growth provision that one may not have more than 99 plants which must be contained in less than 100 square feet.
In Oral Argument for People v. Kelley, the Attorney General’s office conceded that the limits set by the MMPA are unconstitutional to limit a medical marijuana patient’s possession of marijuana as guaranteed under the CUA, and as to burdens placed on a patient’s legal defense as provided by the CUA. The Attorney General’s office asserted that instead that the limits should be upheld as guidelines for law enforcement to establish in an arrest situation that marijuana possessed by a patient is truly for medical purpose. The Supreme Court’s decision on People v. Kelley is in line with the Attorney General’s concession.
My understanding is that the court decided that the specific provision of the MMPA (section 11362.77) regarding possession limits could remain, but that it could only be used for defensive purposes by patients, because the limitations would otherwise contravene the intent behind the CUA. Basically, a patient or caregiver can use the fact that they possessed marijuana in accordance with the limits to prevent arrest or to show that their possession was “reasonably related to the patient’s current medical needs,” which is all that is required under the CUA (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549). However, patients or caregiver need not be within the limits to assert that their possession was reasonably for medical purposes.
For the source of most of my information on the Kelley case, as well as excepts of the case, a more informed explanation, and links to the decision itself and other pertinent information, go to The National Organization for the Reform of Marijuana Laws blog and read California Supreme Court: State’s Marijuana Possession Limits Are A Floor, Not A Ceiling and Watch-On-The-Web: Important Medical Marijuana Case Before California Supreme Court .
Drug Court Humonetarianism
Reuters has a fascinating article here on drug courts, empathy, and the monetization of humanitarianism. The author discusses shifting economic priorities in the war on drugs.
Contextually, it begins with Judge Gorsalitz’s drug court in Kalamazoo, MI. The writer’s title, “America’s new touchy-feely war on drugs,” and tone suggest amusement or even contempt for the drug-court approach, but then the litany of drug war harms and legalization benefits belies a different understanding.
The piece favors Judge Aim’s Project Hope in Hawaii, which saves money by making drug treatment voluntary not mandatory, and uses penalties of short jail stays instead of reinstating full sentences. Of course, here in the City&County of SF we have Judge Albers’s Community Justice Center — for its drug court context see Prof. Aviram’s post here.
Two Bites at the Apple: The Power of Suspending Imposition of a Sentence
Dr. Aviram has graciously permitted me to post my thoughts on one aspect of the criminal justice system that I came across in the course of a recent externship. In one particular case before our court, a trial court judge suspended imposition of the defendant’s sentence. Although it was not the subject of the defendant’s appeal, I was fascinated by the process and felt it shed light on a Judge’s role and the power of the criminal justice system. Here is how the process works in a hypothetical where I have changed the facts and names in the case:
Hypothetical
18-year old Adam Smith went out drinking late one night with a friend. After some heavy drinking, they take some cocaine Smith’s friend brought along. Intoxicated and high on drugs, they decided to throw fruit at cars from a walkway on an overpass. One orange seriously dented the front hood of a police officer’s vehicle as the officer was finishing her shift for the night. The two friends began laughing, but realized it was now time to run. When the police officer caught up to them, Smith’s friend immediately gave himself up but Smith defiantly resisted and tried to punch the police officer, striking her left shoulder and forcing the police officer to use her police taser.
On the advice of his public defender, Smith entered a guilty plea before Judge Foltz, known for her cautious leniency towards defendants who admit their crimes and save the taxpayers the expense of a long trial. At sentencing, Smith insisted that his crimes that night were childish indiscretions. He told Judge Foltz that a few days before the evening in question, he found out his father was cheating on his mother and that they would be getting a divorce. Depressed and in need of “self medication” he went out and tried drugs for the first time, and made a series of poor decisions because his friend thought cocaine would make him feel better.
Smith maintained that he was simply rebelling against the situation when he went out and did not know how to handle himself. His acts were the unfortunate byproduct of not being in his right state of mind. He promised it would never happen again. Smith’s parents testified on his behalf, and lamented that really, this incident was all their fault. Judge Foltz was reluctant to take Smith at his word, but she sympathized with his argument that it was a youthful indiscretion and found no evidence that Smith was a “bad apple.” To avoid letting him get off “scott free” for what are serious offenses but also to not unnecessarily institutionalize an otherwise good kid and ruin his prospects of college, she told Smith that she would suspend imposition of his sentence and place him on probation for a period of three years if he made restitution for any damage. Only days before his three year probation was to be over, Smith robbed an elderly woman at gunpoint at an ATM.
Now Smith went before Judge Holmes, known for his no-nonsense approach to criminal defendants. Because Judge Foltz suspended imposition of Smith’s prior sentence, Judge Holmes gets to determine the sentence for all three crimes: the first two crimes (vandalism and assaulting a police officer), as well as the subsequent crime, armed robbery. Holmes throws the book at Smith, giving him the statutory maximum for all of the crimes, including a mandatory 10-year sentence enhancement for using a gun during his robbery, giving him a total of 25 years in jail. Smith now wished he hadn’t gotten off “scott free” in front of Judge Foltz, and simply received a reduced sentence.
Commentary
It’s easy to see the downside to a defendant where a Judge suspends imposition of a sentence. A subsequent Judge will sentence the defendant knowing what crime the defendant went on to commit, and that inevitably colors a Judge’s perception of the defendant’s earlier offense. Judge Holmes looked at the mitigating circumstances of the original offenses differently from Judge Foltz, and rather than seeing them as youthful indiscretions, saw a young man committing crimes of escalating seriousness who did not take advantage of the break Judge Foltz gave him. Holmes likely felt that leniency would not do Smith any favors, who did not seem to learn from his mistake when he avoided prison time following Smith’s first encounter with the justice system. Moreover, Judge Holmes was forced to make his decision about the subsequent crime while carefully examining the details of a prior crime necessary to formulate his sentence, making the Judge less sympathetic about any mitigating circumstances of the subsequent offense as well.
There’s an obvious objection to this tool, which is that the subsequent crime cannot be considered as part of the sentencing of the original offense and vice-versa. Strictly speaking, they can’t. But a Judge probably cannot escape what he or she knows about the defendant’s subsequent and prior conduct, and thus whatever mental barriers which have been erected to compartmentalize the analysis are likely to be ineffective. A judge may simply be careful to not articulate her sentence for the earlier offense in terms of what happened in the subsequent crime.
The constitutionality of statutes which authorize judge’s to suspend imposition of a sentence has already been affirmed. Moreover, it’s not clear eliminating such a power would necessarily change the outcome. In Peterson v. Dunbar 355 F.2d 800 (1966), a court affirmed the statute granting the right to Judge’s to suspend imposition of a sentence and noted: “If there be any merit in appellant’s argument, the obvious alternative, still available to the judge, is to start at the top instead of at the bottom– to impose the maximum sentence at the outset, suspend its execution and subsequently vacate it if probation is successful, or, should probation be revoked, reduce it to the extent, if any, then felt suitable.”
From a Judge’s perspective, suspending imposition of a crime is preferable to granting a lesser sentence. Such a tool allows a Judge to distinguish between a “career criminal” and a someone who committed a “youthful indiscretion” while preserving the system’s ability to revisit the issue in light of subsequent conduct. It is likely that the tool allows a Judge to grant mercy more often by reducing the cost of leniency and allows a more accurate sentence in a subsequent proceeding because of superior information. Moreover, with the prospect of an even harsher sentence the second time around, it can serve as a greater deterrent to subsequent crime. Of course, this assumes the criminal mind rationally calculates his or her behavior based upon the length of sentence.
Nevertheless, suspending imposition of a sentence may satisfy both the DA-minded and PD-minded alike by keeping one-time offenders out of jail but increasing the sentence of repeat players. Many lawyers would appreciate the increase in discretion such a tool affords a judge, although others might fear the punitive aspects of its application. But on the whole, the ability to suspend imposition of a sentence increases the discretion of a Judge and therefore reduces the power of other institutional actors like prosecutors who might vigorously oppose leniency under any other circumstance.
It’s unclear whether suspending imposition of a sentence increases prison time on an aggregate basis or reduces it. If I were trying to generate a hypothesis on this point, I would start by determining how many repeat players are in the system. If the numbers of repeat players are extremely high, then suspending imposition of a sentence is likely to increase prison overcrowding on the whole. Additionally, I would look to what kinds of crimes Judge’s typically apply this tool towards to see how much it reduces prison sentences. In my hypothetical the bulk of the defendant’s prison sentence is still coming from the armed robbery and the mandatory sentence enhancement.
In any event, it’s a fascinating tool and has important implications for sentencing, overcrowding, and judicial economy.