FA L L 2 0 1 0
Families Against Mandator y Minimums
Issue 3 | Volume 21
FAMMGram Se n ten ce s th at fit. Justic e that w orks.
6 C hange worth celebrating: The Fair Sentencing Act of 2010 24 years later, the unjust crack disparity is toppled. 8 Good and bad federal guideline news Recency reforms and FAMM’s challenge to the commission. 10 States embrace sentencing changes Massachusetts and South Carolina enact major reforms. 12 FAMM falls into new Supreme Court term Three cases step up FAMM’s presence in the Court.
departments 3 FAMM in the news 6 Federal news 10 State news 12 Litigation 14 Is justice being served? 15 Outreach
Credit for 2010 sentencing victories belongs to you 2010 has been an extraordinary year for
sentencing reform and FAMM’s members – YOU – made it happen! Maybe you are in prison, or are the loved one of an incarcerated person. Or you’re a concerned taxpayer who is tired of seeing billions spent on putting the wrong people in prison for too long. Perhaps you’re an attorney, judge, or advocate who knows mandatory minimum sentencing
policies are ineffective. No matter why you care about sentencing reform, this year you made the difference: you called and wrote your legislators, told your friends and colleagues about FAMM’s work, donated, attended lobby days and hearings, and wrote letters to the editors of your local newspapers. That hard work paid off!
continued on page 4
Yes, we have reason to celebrate! The victories you’ve helped us achieve this year will touch the lives of thousands of people. That’s what’s so gratifying about changing a law – so many people benefit. Most defendants probably won’t know that our hard work reduced their sentences, but WE know. We know that by changing the federal crack cocaine sentencing law and expanding parole eligibility in Massachusetts, we’ve made the criminal justice system a little more just. And what better goal to work for than justice?!
Of course, we also know that our work is not done. Not by a long shot. At the top of my list is making the new crack cocaine law retroactive. It would be a cruel injustice to change the law based on the long sentences endured by those in prison, only to then leave them behind. We will not forget the people in prison who are still waiting for justice. Little did I imagine 19 years ago when I started FAMM that I would still be here today fighting for sentencing justice. And I probably wouldn’t be here if we hadn’t had so many wins over the years to convince me that we will have more of them. By our conservative estimate, the reforms we’ve won at the state and federal levels have lowered the sentences of approximately 134,000 people. By next year, our 20th anniversary, we can add the 3,000 people we know will benefit from the crack reform we’ve already won and – if we win the next battle – another 24,000 or so who will benefit from retroactivity of the new crack law. And there are likely to be more victories at the Supreme Court, in Massachusetts, Florida and elsewhere to remind us that what we’re doing is not only right – it’s possible! So, this year’s important wins are a taste of what we will accomplish in the next few years. Savor these victories today and then roll up your sleeves. We have a lot more work to do!
P.S. And don’t forget that now is the time to make a donation to FAMM because it will be doubled! One of our remarkable supporters will match any donation that arrives before December 31st, so please give now and give big! Thank you!
fa l l
families Against Mandatory Minimums
Since 1991 Mission: FAMM is the national voice for fair and proportionate sentencing laws. We shine a light on the human face of sentencing, advocate for state and federal sentencing reform, and mobilize thousands of individuals and families whose lives are adversely affected by unjust sentences. The FAMMGram is published three times a year.
FAMMGram Fall 2010
Julie Stewart President Mary Price Vice president and general counsel
Barbara J. Dougan Massachusetts project director
Monica Pratt Raffanel Communications director
Andrea Strong Member services director
Ava Page Federal legislative affairs and media associate
Jennifer Seltzer Stitt Federal legislative affairs director
Molly Gill Special projects director and staff attorney
Roxana Rincones Finance and administration director
Deborah Fleischaker State legislative affairs director
Christie Wrightson Development director
Karen Garrison D.C. office assistant
FAMM National Office 1612 K Street, NW, Suite 700 Washington, DC 20006 phone (202) 822-6700 fax (202) 822-6704 email@example.com www.famm.org FAMM’s offices do not accept collect calls. FAMM cannot respond to requests for legal help.
Famm in the news
August 3, 2010 August 12, 2010 Some victories in criminal justice reform
“Over the years the studies have amassed, showing that mandatory minimum sentences do not reduce either drug offenses or drug dependency and addiction,” said Barbara Dougan, project director for Massachusetts FAMM. “Instead, too often they result in nonviolent or low-level offenders being punished with the same lengthy sentences intended for drug kingpins.” Dougan praised both the Legislature for showing the “courage” to change laws that don’t work, and [Gov.] Patrick for his leadership on the issue.
August 4, 2010
Fair Sentencing Act on the agenda
“It’s deeply rewarding to see significant reform of crack penalties. For years, the sentences were widely understood to be flawed and illogical, created in the heat of the drug war without any scientific basis for their severity,” said Julie Stewart, founder and president of Families Against Mandatory Minimums, which has lobbied on this issue for more than two decades. “Hopefully, this victory signals the beginning of new bipartisanship that will lead to even more commonsense sentencing reforms.”
Editorial: The Fair Sentencing Act corrects a long-time wrong in cocaine cases
Congress took a courageous and historic step last week toward making the criminal justice system more fair… Assistant Senate Majority Leader Richard Durbin (DIll.) and Sen. Jeff Sessions (R-Ala.) deserve credit for hammering out the compromise and shepherding the bill through the Senate; House Majority Whip James E. Clyburn (D-S.C.) and Bobby Scott (D-Va.) were instrumental in advancing the bill in the House. Much credit also belongs to Families Against Mandatory Minimums, which for years pushed relentlessly for a fair corrective to the abusive sentencing laws.
July 29, 2010 House eases crack-cocaine sentences
“We think it’s a victory. It’s not everything we want but that’s politics,” said Julie Stewart, president of Families Against Mandatory Minimums. Ms. Stewart said her biggest complaint is that the new law won’t be retroactive. “We’re going back for that,” she said.
August 13, 2010 Florida’s minimum mandatory laws produce uneven sentences
August 3, 2010 Obama signs law narrowing cocaine sentencing disparities
Julie Stewart, founder and president of Families Against Mandatory Minimums, said the law “signals the beginning of new bipartisanship” that should lead to more reform, like extending the new rules to those already in prison. “The first test is whether Congress will finish the job on crack reform and apply the law retroactively,” she said.
“Florida has some of the harshest penalties. The mandatory minimum for (trafficking) over 28 grams of Vicodin or oxycodone is 25 years. In Texas, it’s two,” said Deborah Fleischaker, state legislative affairs director of Families Against Mandatory Minimums. “And that 25 years is the same sentence that Florida has for molestation of a child under the age of 12. So you can compare Florida to other states and it is outsized, and you can compare Florida to how it punishes other crime ... and you end up treating addicts the way you treat child molesters,” she added. FG
Credit for 2010 sentencing victories belongs to you! continued from page 1
Massachusetts wins sentencing overhaul This year, FAMM had a major breakthrough in its Massachusetts campaign. For the first time since Massachusetts enacted harsh mandatory sentencing laws in the 1980s, the state legislature voted to allow certain county prisoners who are serving mandatory minimums to become eligible for parole.
Barbara Dougan (far right) watches as Gov. Deval Patrick signs sentencing reforms into law.
“I am excited about the progress you’ve made! Our son was sentenced to three years in the state system, two years in the county. You just saved him one year... Thanks a million.” — A Massachusetts father
FAMM’s 1,400 Massachusetts members did a terrific job of supporting our efforts by writing and calling legislators. One member was told by a representative’s aide, “We’re being flooded with phone calls from FAMM members!” You also attended meetings and hearings, and helped educate the public by sending letters to Photo credit: Boston Globe your local newspapers about the need to change Massachusetts’ sentencing laws. Those of you who are incarcerated did an exceptional job of organizing letter writing campaigns in several prisons, resulting in hundreds of additional letters. Massachusetts FAMM members, and FAMM’s Massachusetts project director Barbara Dougan, were all over the news this year, calling on legislators to allow drug offenders to be eligible for parole and work release. They listened. On August 6, Governor Deval Patrick signed into law S.2583, a bill that allows certain county (Houses of Correction) drug — A Massachusetts family member offenders serving mandatory minimum sentences to be eligible for parole after serving one-half of their sentences – just like all other county prisoners who are eligible for parole. There are currently 500 – 600 prisoners serving mandatory drug sentences in county facilities. Barbara spoke at the signing ceremony and stood beaming near the governor as he signed the bill into law. “Keep up the good fight – we are right there with you.”
Of course, we want more and FAMM will continue to fight for more reforms and call on our Massachusetts members to get them passed. Read page 10 for more on our Massachusetts project.
“The inmates here are grateful for having you in our corner fighting for us and for keeping families and inmates informed.” — A Massachusetts prisoner
Congratulations and thank you for your commitment. There are far too many people incarcerated in the land of the free who either should not be incarcerated at all or the sentence should be reasonable and fit the crime. — Mother of a federal prisoner
Federal crack reform a reality Federally, the big win was making crack cocaine sentences more fair. Your hard work and persistence paid off on August 3, when President Barack Obama signed into law the Fair Sentencing Act of 2010. For nearly two decades we’ve been fighting to make crack penalties more in line with penalties for powder cocaine and other drugs. Finally, this year, Congress did just that. Nearly 3,000 people sentenced in federal courts each year for crack offenses will now benefit from the more realistic and equitable penalties established for crack cocaine violations. We couldn’t have done this without your help. You called, wrote and met with your legislators, gave generously to FAMM, participated in lobby days, and let Congress know that their constituents supported crack reform. The next step, of course, is to make that reform retroactive. We’re going to need your help again to succeed, and we won’t be shy in asking for it! Turn to page 6 to read more about the crack reforms and retroactivity.
Although this bill will not help me personally, it’s very likely to help someone we know in the future. It feels good to be a part of something bigger than ourselves. — FAMM supporter
Top: FAMM’s Jennifer Seltzer Stitt and Karen Garrison celebrate the passage of the Fair Sentencing Act of 2010 with U.S. Attorney General Eric Holder. Right: President Obama signs the crack law, while champions of the reform look on.
We moms really thank FAMM for your hard, diligent work on our behalf … Without FAMM, a lot of our sons’ lives would be wasted and tax dollars would continually be consumed. — Mother of a federal prisoner
The National Criminal Justice Commission Act gains momentum Another important federal bill that is moving forward, thanks to your hard work, is the National Criminal Justice Commission Act. It would create a special commission to do a top-tobottom review of America’s criminal justice system, including its sentencing laws. On April 27, U.S. Reps. Bill Delahunt (D-Mass.), Darrel Issa (R-Calif.), Marcia Fudge (D-Ohio), Tom Rooney (R-Fla.), and Robert C. “Bobby” Scott (D-Va.), Chairman of the House Judiciary Committee, introduced the bill. On July 27, after hundreds of calls and emails from FAMM members, the
Julie Stewart and Sen. Jim Webb (D-Va.) discuss the National Criminal Justice Commission Act.
House of Representatives passed the bill with strong bipartisan support. The bill was introduced by Senator Jim Webb (D-Va.) in the Senate on March 26, 2009. It is moving through the Senate but needs an extra boost. That’s why you participated in our national call-in day on September 15, telling the Senate to pass the bill and send it to President Obama for his signature. We have until the end of 2010 to turn Sen. Webb’s bill into a law.
Julie Stewart and Rep. Darrell Issa (R. Calif.) share a laugh at the House introduction of the NCJCA.
Thank you for taking action, and keep checking www.famm.org for updates on how you can help. FG Fall 2010
A change worth celebrating!
The Fair Sentencing Act of 2010
At times, it seemed impossible that we would ever succeed in changing federal crack cocaine sentencing laws. But this August the impossible happened.
Len Bias’ death was the catalyst for mandatory minimum laws in 1986.
FAMM member Cedric Parker and his daughter educated lawmakers like Richard Durbin (D-Ill.) about the impact of the crack disparity on families.
tory minimum is now triggered by 280 grams of crack, instead of 50 grams. These quantities The problem began in 1986, shortly after were the result of comcollege basketball star Len Bias died from a promises that were hard cocaine overdose, and the “crack epidemic” for FAMM to accept swept America’s inner cities. On the cusp of an because we have fought election and with almost no debate, Conmany years for more siggress passed a bill creating mandatory prison nificant changes. But it sentences for drug offenses, including crack was clear that it was this cocaine. bill or no bill. Given that Because it was a new form of cocaine and a large percentage of our Champions of reform Rep. Bobby there was little known about it but great fear Scott and Rep. John Conyers membership is affected with Julie Stewart. of it, Congress decided that a small amount by crack cocaine penalof crack – merely five grams ties, we accepted an imperfect bill be(the weight of a packet of cause it will result in lower sentences sweetener) – should trigger for thousands of defendants. The bill repeals the a mandatory prison sentence of five It is estimated that almost 3,000 peoyears. In the 24 years since that difive-year mandatory ple a year will get fairer sentences as a sastrous decision, expert after expert minimum prison sentence result of the Fair Sentencing Act, with have testified that the crack penalfor simple possession of average sentence reductions of nearly ties are not based on science and crack cocaine. This is the 2¼ years. Additionally, the bill repeals disproportionately impact African first time since the Nixon the five-year mandatory minimum Americans, sending them to prison prison sentence for simple possesfor years longer than those convicted Administration that a mandatory drug sentence sion of crack cocaine. This is the first of other drug offenses. time since the Nixon Administration has been repealed! Finally, the evidence bore fruit. On that a mandatory drug sentence has March 17, the U.S. Senate unanibeen repealed! The bill will also save mously passed the Fair Sentencing taxpayers $42 million over the next Act of 2010 after an intense round of amendments five years. So there were many reasons to support and compromises. On July 28, the U.S. House of this imperfect bill. Representatives passed the same bill The fight for retroactivity and on August 3, One of the biggest flaws of the Fair Sentencing Act is President Obama that it is not retroactive. For now, it does not apply to signed it into law. people already in prison serving sentences for crack The bill changes the quantity of crack needed to trigger a five-year mandatory minimum prison sentence from five grams to 28 grams. A 10-year manda-
cocaine offenses. But we intend to change that – with your help! What’s fair going forward is fair for those already sentenced. We are asking FAMM members to do everything to support retroactivity: Write and call your federal legislators today, thank them for passing the Fair Sentencing Act, and tell them there is one more step to take – make the bill retroactive. Go to town hall meetings with your representative. Write
Several members of the Crack the Disparity Coalition after the House vote (l to r): Jasmine Tyler, Drug Policy Alliance; Laura Murphy, ACLU; Jennifer Seltzer Stitt, FAMM; Kara Gotsch, The Sentencing Project and Nkechi Taifa, Open Society Policy Center.
letters to your newspapers. Call radio programs. Make this a priority! Together we can make this happen! Next year we will work with you to urge the U.S. Sentencing Commission to make the changes to the crack guidelines retroactive. There is so much to do and we can’t do it without you. Please continue to check our website, www.famm.org, for updates and actions related to retroactivity. FG
What does the new crack law do? On August 3, President Obama signed the Fair Sentencing Act of 2010 (FSA) into law. The FSA increases the amount of crack cocaine required to trigger the five- and 10-year mandatory minimum sentences and changes the 100:1 ratio between crack and powder cocaine to a ratio of 18:1. Now, 28 grams of crack triggers a five-year mandatory minimum, and 280 grams of crack triggers a 10-year mandatory minimum. The new law also eliminates the fiveyear mandatory minimum for simple possession of crack cocaine. The law only applies to people in federal courts, not state courts.
Is the FSA retroactive? The FSA does not provide for retroactivity. However, if you are in prison but have not been sentenced yet, or your case is being appealed and you are waiting for re-sentencing, or if you have an attorney, ask your lawyer about whether and/or how this law may affect you.
Will FAMM work to make the FSA retroactive? Absolutely! FAMM is working to make the changes retroactive by getting a bill introduced and then passed by both houses of Congress and signed by the President.
Will the U.S. Sentencing Commission now change the crack guidelines? Yes. The FSA directs the U.S. Sentencing Commission to amend the crack sentencing guidelines so that they agree with the new law. The FSA gives the Commission “emergency authority” to amend the crack sentencing guidelines within 90 days of the date the FSA was signed into law (by November 1, 2010). On September 2, the Commission issued proposed “temporary emergency amendments” to the crack guidelines and gave the public until October 8 to submit comments on how the guidelines should be changed. FAMM has submitted comments to the Commission asking it to amend the guidelines in a way that minimizes the various sentencing enhancements asked for by Congress.
Five-year mandatory minimum
10-year mandatory minimum
Simple possession of five grams of crack
Old crack law
Five grams crack 500 grams powder cocaine (100:1 ratio)
50 grams crack 5,000 grams powder cocaine (100:1 ratio)
Five-year mandatory minimum sentence
New crack law (FSA)
28 grams crack 500 grams powder cocaine (18:1 ratio)
280 grams crack 5,000 grams powder cocaine (18:1) ratio
No mandatory minimum
Will the Commission make its changes to the crack guidelines retroactive? We do not know. While the Commission has the authority to make guideline changes that benefit prisoners retroactive, it does not have to. We do not know if or when the Commission will make the crack guideline changes retroactive, but we are urging the Commission to do so as soon as possible. We will report to you on any retroactivity developments as we learn about them.
Can FAMM tell me how the new law or new guidelines will affect me or my loved one? No. Please remember, FAMM cannot provide legal advice, representation, referrals, or guidance to those who need legal help. If you or your loved one need legal advice, you should talk with an attorney.
Pardoned anyone lately, Mr. President? Members have asked: Has President Obama granted any commutations or pardons yet? Unfortunately, as of September 2010, the answer is no. FAMM does not know if or when President Obama will begin granting commutations or pardons. If you or a loved one wants to request a commutation of sentence, visit http:// www.famm.org/GetHelp/Clemencylinksandresources.aspx for links to application forms from the Office of the Pardon Attorney and for FAMM’s guide to filing a federal clemency request.
Good and bad news on recency and federal sentencing guidelines On November 1,
FAMM president Julie Stewart prepares to testify before U.S. Sentencing Commission.
amendments to the 2010 U.S. Sentencing Guidelines take effect. Defendants whose federal sentences would have been enhanced by two criminal history points for “recency” of the offense – for example, when an offense was committed within a certain period of time following release from prison – are getting some good news. They will no longer be subject to the additional penalty, thanks to a new amendment to the federal sentencing guidelines that repeals the recency enhancement. Recency enhancements have been criticized because they double count criminal history, are negligibly helpful in predicting recidivism, and penalize ex-offenders for the failure of the criminal justice system to help them return to secure and law-abiding lives. Problems with the way criminal history is counted are the most often cited reason by judges for varying or departing from the calculated guideline sentence, and are among the reasons why the Sentencing Commission proposed the guideline change.
U.S. sentencing commissioners at work.
But current federal prisoners will get no relief from the new rule, since the U.S. Sentencing Commission did not make it retroactive, declining to vote on retroactivity at a hearing on September 16. FAMM asked the U.S. Sentencing Commission to make the repeal of the recency amendment retroactive, pointing out that it would enable almost 8,000 prisoners to seek to lower their sentences by an average of 13 months. We reminded the Commission that implementing recency retroactivity would be relatively easy in light of the experience gained in preparing for and carrying out the retroactive crack guidelines, starting in 2008. Of course, FAMM also told the Commission that making the change retroactive would be the right thing to do. Unfortunately, comments by commissioners indicated there was no support for applying the new rule to people currently in prison. No one supported retroactivity and three commisioners spoke against it, citing, among other things, a letter from the Criminal Law Committee (CLC) of the Judicial Conference of the United States that said it was concerned about the burden that retroactive application would place on the courts. While FAMM understands the concerns, we are nonetheless deeply disappointed by the Commission’s decision. To read FAMM’s letter and all the comments received by the Commission visit www.ussc.gov. You can also read FAMM’s letter about recency, the Commission’s retroactivity analysis and the Commission’s decision on retroactivity on FAMM’s website, in the federal sentencing section.
FAMM challenges USSC to continue fight against mandatory minimums In testimony before the U.S. Sentencing Commis-
Julie Stewart greets FAMM members who traveled from South Carolina to attend the Sentencing Commission hearing.
sion on May 27, FAMM president Julie Stewart urged commissioners to continue their “strong, smart, and moral leadership” in the fight to repeal mandatory minimum sentencing laws. Stewart was invited to appear at the public hearing, which was organized by the Sentencing Commission to gather testimony regarding the issue of statutory mandatory minimum penalties in federal sentencing. Stewart recounted the importance of the Commission’s 1991 report on the failings of mandatory minimums to the newly created FAMM, which was founded in 1991.
Mary Price, FAMM’s vice president and general counsel, sent Twitter updates during the hearing.
Noting that the Commission was due to issue a new report on mandatory minimums in October, Stewart said, “I urge you to continue to play the same leadership role in opposing mandatory minimums that previous Commissions have. You have a bully pulpit that we do not have, and you should continue to use it to say loudly and clearly: Mandatory minimums were wrong before there were sentencing guidelines; they were wrong when the guidelines were enforceable; and they are wrong now that the guidelines are advisory.” Stewart also warned the Commission about establishing uniformity as a higher sentencing goal than justice, questioning the superficial idea that one size fits all. Stewart shared some examples of the harsh sentences that have resulted from mandatory minimum laws, saying, “If we had collected only a handful of these horrible stories over the course of FAMM’s existence, I might understand the reluctance of Congress or this body to pay too much attention. But we’ve collected thousands of these cases in nearly two decades. This is an epidemic of injustice.” Following Stewart’s testimony, the commissioners also had a chance to meet some of the FAMM supporters who came from as far away as South Carolina to attend the hearing. FG
Your toolkit for legislative change. Request FAMM’s “Advocating for Change” guide to influencing lawmakers and learn more about the legislative process. For a free copy, visit www.famm.org or email firstname.lastname@example.org.
What’s ahead for FAMM’s federal guidelines work The 2011 United States Sentencing Commission amendment cycle started on May 1. Every summer, the Commission begins considering which federal sentencing issues it might prioritize with guideline amendments, hearings or special reports. In July, the Commission published its proposed list of priorities and asked the public to weigh in. FAMM told the Commission what priorities we’d like them take up. Among them were making the two-level reduction for crack cocaine offenses apply to all drugs, expanding the guidelines’ two-level reduction for safety valve eligibility available beyond drug cases to all cases, and getting rid of the guideline rule that tells judges to increase sentences even for conduct for which the jury found the defendant “not guilty” or for dismissed charges. FAMM also urged the Commission to: Study and report on mandatory minimums. FAMM reminded the Commission of our interest in their upcoming report on federal mandatory minimums and encouraged it to reiterate its longstanding opposition to inflexible sentencing laws. We also encouraged the Commission to study and expand the safety valve, and gave specifics on how that might happen. Study and issue recommendations on advisory guidelines. We endorsed a study and reiterated our support for the advisory guideline system, encouraging the Commission to resist the temptation to propose that the guidelines be made more strict. Work to continue crack cocaine sentencing reform. We encouraged the Commission to set base offense levels at level 24 (where crack cocaine levels currently reside following the “crack minus two” reform of 2007) and make the changes retroactive. You can see the complete list of Commission priorities at www.ussc.gov. FAMM’s priority letter and our comments to the United States Sentencing Commission are posted at www.famm.org.
Sentencing reform passes in Massachusetts For the first time since Massachusetts enacted harsh mandatory sentencing laws in the 1980s, the state legislature voted to allow certain county prisoners who are serving mandatory minimum sentences to become eligible for parole. Governor Deval Patrick signed the bill into law on August 6. It will take effect on November 4.
Defense Attorneys. Finally, we are especially grateful to our Massachusetts lobbyist, Mary Ann Walsh of Governmental Strategies, Inc., whose commitment to drug policy reform equals her expertise in legislative affairs.
The new law is a bittersweet victory, given that it offers no relief for state prisoners. Yet they are the ones who serve the longest drug sentences in Massachusetts – up to 20 years. But FAMM also recognizes that change must start somewhere and that the new law is an excellent first step in the right direction.
The sentencing reform sections of the new law change the state’s Controlled Substances Act, Chapter 94C of the Massachusetts General Laws. The new law applies to county drug offenders who are convicted of distribution of Class A, B and C controlled substances, trafficking and school zone violations. It applies to current prisoners as well as to those who will be sentenced in the future. Drug offenders serving mandatory minimum sentences will now be treated like other county prisoners when it comes to parole eligibility, unless they fall within three exceptions:
The efforts of many people made this historic moment possible. First and foremost, FAMM’s Massachusetts’ members really rolled up their sleeves and went to work throughout 2010. They demanded change from their elected representatives and helped to educate the public on the need for sentencing reform. Barbara Dougan speaking at the governor’s press conference.
In the Legislature, long-time stalwart Sen. Cynthia Creem and Rep. Eugene O’Flaherty guided the work of the conference committee that produced the final bill. We were also fortunate to work alongside allies who have their own impressive legacies on mandatory minimum sentencing issues: Massachusetts Bar Association, Boston Bar Association, Committee for Public Counsel Services, ACLU of Massachusetts, Mass. Correctional Legal Services and Mass. Association of Criminal
Coming this fall: Massachusetts membership meetings FAMM’s Massachusetts project previously held its annual membership meetings in the spring. In 2010 we decided to push back the meetings to the fall so we could focus all our efforts on the Legislature’s sentencing reform bill. We will be holding membership meetings in cities around the state. These gatherings are a terrific opportunity to network with other FAMM members, learn about FAMM’s legislative agenda, and discuss how we can make change happen. We will notify our Massachusetts members of the meeting schedule by email. You can also check FAMM’s website or call (617) 543-0878 for the latest information.
Who is affected by the new law?
The person used violence, the threat of violence, possessed a gun or other weapon during the drug offense, or “induced” (caused) someone else to do any of these things during the offense. Note that mere possession of a weapon is enough to disqualify someone from parole eligibility; there is no requirement that the person actually used or even showed the weapon. The person “engaged in a course of conduct whereby he directed the activities of another” who committed a drug felony. This section of the bill is aimed at drug kingpins. While it is unlikely that a kingpin or major dealer would be sentenced to a relatively short county sentence (usually 2 ½ years or less), it remains to be seen how this language will be interpreted. The person sold drugs to a minor (under age 18), used a minor to sell drugs, or tried to commit either of these offenses. The new law does not guarantee that any prisoner will be released early. Instead, it allows drug offenders to be considered for parole. The Parole Board will decide who deserves parole and under what conditions. The new law also specifies that as a condition of parole the Parole Board can required “enhanced supervision,” which can include the wearing of a GPS tracking device, also known as an electronic monitoring bracelet. In addition, the state Department of Correction (DOC) or a county sheriff may grant permission for a drug offender to participate in an education, training or employment program outside of prison. Such
decisions will be made on a case-by-case basis. Neither the DOC nor a county sheriff will be required to make these opportunities available. Unfortunately, the final bill did not include two important reforms that the state Senate passed in 2009: parole eligibility for drug offenders in state prisons and eligibility for “work release” programs for either state or county drug offenders. Much of the new law concerns the related issue of how Massachusetts handles criminal records (often called CORI, short for “criminal offender record information”) – who has access to that information, for how long, and how that information can be used. A summary of the CORI sections of the bill be posted on
Florida FAMM’s Florida project makes progress FAMM continues to make progress in its fight to eliminate mandatory minimum sentences for drug trafficking crimes in the state of Florida. Florida’s mandatory minimum sentences are among the harshest in the country, particularly those for trafficking illegal prescription opiates like Vicodin and Oxycodone. For example, being convicted of possessing over 28 grams of illegal prescription drugs (approximately the weight of half of a candy bar) requires a minimum sentence of 25 years in prison, regardless of whether there are extenuating circumstances. The minimum prison term is based solely on the weight of the illegal drug involved in the offense, and no evidence of trafficking is required.
FAMM’s website when it becomes available. The legislature’s 2011–2012 session begins in January. FAMM’s Massachusetts project will have bills ready to be filed that pick up where we left off this past summer. We will continue to fight for parole eligibility for drug offenders in state prisons and greater access to work release programs. We will also continue our work to reform the state’s school zone law and – eventually – to repeal mandatory minimum sentencing laws altogether.
FAMM has spent the past six months establishing itself in the state. While no new sentencing reform legislation was passed during the 2010 legislative session, FAMM spent a great deal of time in the legislature and has become known as a passionate and trusted advocate on these issues. We will enter the 2011 legislative session in a much better position to effect change. FAMM also has become a go-to source for state media. In the past few months, the Orlando Sentinel and the Gainesville Sun have both editorialized in favor of mandatory minimum reform. FAMM also has been developing relationships with other groups in the state that work on sentencing reform issues. These groups include, among others, the Collins Center for Public Policy, Florida TaxWatch, and the ACLU. FG
South Carolina passes new sentencing reform law On June 2, South Carolina Governor Mark Sanford signed a sweeping new sentencing reform bill into law. The South Carolina Senate had passed the bill unanimously on March 30 and the House had passed the bill by a vote of 97-4 on May 25. The new law contains many criminal justice reforms, including the elimination of mandatory minimum sentences for first-time drug possession, making certain repeat drug offenders eligible for a suspended sentence and other sentence-reducing pro-
grams, and removing the 10-year mandatory minimum sentence for violations of its drug-free school zone law. In addition, the bill would eliminate sentencing disparities for crack and powdered cocaine possession. Besides being sound criminal justice policy, the new law is projected to save the state $409 million over the next five years. As Senator Chip Campsen (R-Isle of Palms) said, the law is “smart on crime and soft on the taxpayer.”
FAMM falls into new Supreme Court term FAMM is stepping up its presence in the Supreme Court of the United States, starting on “First Monday,” when the Clerk of the Court announces the Supreme Court’s new term with the traditional, “Oyez! Oyez! Oyez!” On that day, October 4, the Justices heard oral arguments in the first of three important cases FAMM is involved in this term.
Abbott and Gould v. United States (No. 09-479, 09-7073) This case represents an “Aha” moment for people
concerned about the harshness of the federal gun statute, 18 U.S.C. sec. 924(c). That law tells judges they must sentence people convicted of drug crimes or crimes of violence who possessed or used a gun to an extra mandatory minimum sentence of at least five years for the gun, on top of the sentence for the drug or violent crime. Sentences can get very long under the gun statute as mandatory minimums of five, 10 or more years for underlying offenses are increased by five, seven, 10 or even 25 or more consecutive years for the gun offense. As it turns out, there is a little-noticed, until now, “except” clause in the statute. It says: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or any other provision of law…” the court shall impose the consecutive gun mandatory minimum. The issue is whether this provision means what it appears to say. For example, if a person will be sentenced to a 10-year mandatory minimum for a drug offense and is facing a five-year mandatory minimum for possessing a gun in connection with the drug offense, the except clause seems to say the five-year sentence cannot be imposed. FAMM’s amicus brief in Abbott and Gould explains possible reasons why Congress added the except clause to the gun statute in 1998. Drawing on social science, the safety valve story, the rule of lenity and case studies of two FAMM members who would benefit from the literal reading of the except clause, amicus authors Stephanos Bibas, Stephen Kinnaird and their students at the University of Pennsylvania Supreme Court Clinic made a strong case for interpreting the statute so that the except clause has real impact. You can find FAMM’s amicus brief and more about the case at www.famm.org.
Pepper v. United States (No. 09-6822) Jason Pepper pled guilty to his participation in a drug
conspiracy and was sentenced to 24 months in federal prison, a sentence that varied from the very high calculated guideline sentence. When Pepper left prison after serving his sentence, he was sober, he enrolled in college, earned top grades, got married, became a devoted stepfather, found employment and was promoted. By everyone’s account, he was living an exemplary life and had been fully rehabilitated. However, the government appealed the sentence and, a year after he left prison, Jason Pepper faced the same judge, who did not change the sentence, this time relying on, among other things, Pepper’s extraordinary post-sentencing rehabilitation. The Court of Appeals for the 8th Circuit reversed that sentence and sent the case to another judge, stating in its opinion that post-sentence rehabilitation cannot be considered as a reason to vary from a guideline sentence. The new judge sentenced Mr. Pepper to 65 months and, fully four years after completing his first 24-month prison sentence, Pepper
returned to prison to serve the additional 41 months. When the Supreme Court agreed to his request to review the case, Mr. Pepper was released from prison, but only after spending another full year behind bars. FAMM got involved in the case to explain why the 8th Circuits’ prohibition of post-sentencing rehabilitation is wrong. Our amicus brief says, among other things, that under an advisory system, post-sentencing rehabilitation is not off limits and in fact must be considered by judges who are directed under federal law to consider the history and circumstances of the defendant when deciding on a sentence no longer than necessary to serve the ends of justice. FAMM was very ably represented by Mayer Brown attorney Brian Willen, who has represented FAMM in past briefs. You can find our brief at www.famm.org. Oral argument is not yet scheduled in the case. We’ll update the website as we learn more.
Redd v. United States (No. 10-5106) When someone wants the Supreme Court to review a case, they seek review in a petition for certiorari or “cert.” The court reviews the petition, considers the opposing party’s position and decides whether to grant cert so that the parties can fully brief and then argue the case. The Court receives thousands of cert petitions every year but grants review in only 100 or so of them.
FAMM noticed Redd v. United States and thought we should get involved at the cert stage. We don’t do this very often, but in this case we think the issue is important enough to weigh in and perhaps help get the case some attention. Redd was convicted and sentenced to the harsh Armed Career Criminal Act mandatory minimum sentence of 15 years for being a felon in possession of a firearm with three prior convictions for a drug or violent of-
fense. The problem is that the judge relied on unsupported statements by the probation officer in the Pre-Sentence Investigation Report (PSR) to determine that Redd was a three-time felon. Redd’s attorneys, FAMM and a healthy number of courts of appeals agree that the law requires more than a line in a PSR to prove a prior offense. PSRs can contain incorrect information and the courts should require more proof, especially when three priors trigger one of the harshest mandatory minimum sentences on the books. FAMM and the National Association of Criminal Defense Lawyers (NACDL) joined forces on this brief and are well-represented by Margaret Love, FAMM Amicus Advisory Board member. You can read our brief by visiting www.famm.org. We’ll update our website as soon as we learn whether the Court agrees to take a look at this important issue. FG
is justice being served? The following cases represent FAMM’s “profiles of injustice.” Are you or a loved one serving a mandatory sentence in federal or state prison? If so, we need you to help to show the human face of sentencing injustice. Please request a profile form from FAMM, c/o Profile Researcher, 1612 K St., N.W., Suite 700, Washington, DC, 20006.
CELESTIA MIXON (Federal) Celestia’s childhood in Montana was turned upside down when her father sustained serious brain damage while trying to break up a bar fight. He started drinking and became physically violent towards his family. Celestia’s mother divorced him three years later.
Celestia remained in contact with her father as he descended into alcoholism. At age 11, she began to drink and smoke marijuana to cope with his abusive behavior. When her father died shortly after due to complications from a seizure, Celestia was miserable. She was addicted to methamphetamine by the time she was 15, jumping from group homes to treatment centers before eventually ending up in juvenile detention. When Celestia was released from juvenile detention several months before her 18th birthday she moved into an apartment with her girlfriend, Ashley. The two began to sell meth to finance their own addictions and pay rent.
Five months later, Ashley was pulled over for speeding and officers found a pistol and 2.78 grams of meth in her car. Police searched the girls’ apartment and found drug paraphernalia and a handgun. In September 2007, Celestia, Ashley and another codefendant were indicted for participating in a drug conspiracy from May 2005 to August 2006. Seven months prior to her indictment, Celestia turned her life around after surviving a near-fatal car accident. With support from her mother and stepdad, she achieved sobriety, worked a steady job as assistant manager at a sandwich shop and rented her own apartment. She slowly began to confront the painful events from her past instead of numbing herself with drugs and alcohol. What sentence do you think Celestia should have received? Celestia pled guilty to conspiracy to possess with intent to distribute over 500 grams of methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. Unfortunately, because of mandatory minimum laws, Judge Richard Cebull could not consider Celestia’s progress towards recovery. He departed from the guideline range of 16 ½ to 19 years to give Celestia the shortest sentence possible under law: 15 years. Ashley received the same sentence, and the third codefendant, a man who bought drugs from Celestia and Ashley and sold to an undercover agent, received eight years.
ERIC K. ARTHUR (Florida) Eric grew up in Accra, Ghana, in a
three-bedroom house shared with thirty relatives. In 1988, he completed high school and immigrated to New York to enroll in college. In 1992, he transferred to Long Island University’s School of Pharmacy and met his wife, Eric K. Arthur Esther. Eric graduated with his pharmacy degree in 1996 and moved to Florida in search of a job. Soon, Eric and Esther were the proud parents of four children. Eric found steady employment as a pharmacist and settled comfortably into life in Florida, though he never forgot where he came from. He felt obligated to provide for his relatives in Ghana and paid for clothing, food, shelter and school tuition fees for all of his nieces and nephews. He began working the night shift as well as additional overtime hours, but the extra money was not enough to meet the growing needs of his family overseas and his wife and young children. In 2003, Eric was approached by a pharmacy customer with whom he was briefly acquainted. The customer and his wife were addicted to painkillers and told Eric they would pay him hundreds of dollars for each false prescription he filled. Eric eventually agreed, persuaded by the promise of extra money, and helped make the prescriptions look legitimate. From February to November 2003, the couple dropped off several prescriptions two to three times per week. Eric tried to ignore his guilt about his illegal activity because he was glad to finally be able to send enough funds to Ghana. Shortly after he was arrested. What sentence do you think Eric should have received? Eric was convicted at trial of conspiracy to traffic 28 grams or more of a controlled substance, a charge that carries a 25-year mandatory minimum in Florida. At sentencing, Judge Weatherby acknowledged that his hands were tied in Eric’s case: “I recognize this is a mandatory sentence, that I don’t really have any choices.”
22-year-old Celestia has now been incarcerated for almost three years over 1,000 miles away from her mother and stepdad.
Eric’s two codefendants that used the painkillers themselves and sold the pills to others testified against Eric and did not receive any jail time. The man was rearrested in July 2005 for the same offense and received only three years of probation.
Unless the law changes or she is granted executive clemency, Celestia Mixon will be in federal prison until 2020.
Eric’s incarceration has been incredibly hard on his family. His children are now 21, 14, 11 and 8. FG
Celebrating justice with the Congressional Black Caucus Foundation Julie Stewart joined sen-
tencing reform experts to talk about mandatory minimum and crack cocaine sentencing reform at the Congressional Black Caucus Foundation’s Annual Legislative Conference on September 16. The panel, hosted by Representative Maxine Waters (D-Calif.) was called, “Elimination of Mandatory Minimums: New Opportunities to End Old Policies.” FAMM member Kemba Smith, who was sentenced to 24 1/2 years in federal prison for a drug conspiracy, moderated the panel that also included Charles Ogletree, Kara Gotsch and Nkechi Taifa. Smith’s sentence was commuted by President Bill Clinton in 2001.
Top: Julie Stewart, Kemba Smith and Rep. Maxine Waters share the good news about the new crack law with CBCF attendees. Right: Gus and Odessa Smith, Kemba’s parents and FAMM supporters.
Julie talked about FAMM members with loved ones serving five, 10, or 15 years in prison on crack cocaine charges. She called on Congress to make the new crack cocaine reform changes retroactive so that those serving sentences declared unjust by Congress might also benefit from the change. She also urged Congress to go further and repeal all mandatory minimums. FG
SentenceSpeak …is a blog hosted by FAMM that seeks to inspire new dialogue, new approaches, and new responses to mandatory minimum sentencing laws and other tough criminal justice issues. SentenceSpeak is an engaging, insightful, even irreverent take on sentencing laws and policies. Join the fun, the conversation, and add to the debate at SentenceSpeak.
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