A must-read article in the New York Times today about Sgt. Patrick Lett and his cocaine sentencing in Alabama. Law Prof Doug Berman of Sentencing Law and Policy, who is now representing Sgt. Lett pro bono, has lots more.

First, about Sgt. Lett:

Sgt. Patrick Lett, had served 17 years in the Army, including two tours in Iraq, and he had pleaded guilty in federal court to selling cocaine. It was up to Judge William H. Steele, a former marine, to decide how to punish him. “I don’t normally see people standing before me in uniform,” Judge Steele said.

Sergeant Lett’s commanding officer, Capt. Michael Iannuccilli, testified that the man he knew was “a patriot, father and a good man.” “I would gladly deploy to Iraq with him and entrust my life to him,” Captain Iannuccilli said. “I’d trust my soldiers’ lives to him. He’s been nothing but an exemplary soldier.”...

The judge's hands were tied by the mandatory minimum 5 year penalty. He wanted to give Lett as short a sentence as possible. Read below what happened:

A bill introduced in Idaho to allow judges to depart below state mandatory minimum sentencing laws for defendants marginally involved in drug dealing will get a full hearing before the state's House Judiciary, Rules and Administration Committee.

The bill is co-sponsored by three Republicans and one Democrat.

Idaho now has 7,400 people behind bars. More than half of them are there due to drug-related offenses. The state has shipped about 500 people to other states because there's no more room in prisons in Idaho.

Under the bill, judges could opt for shorter, treatment-focused sentences for addicts convicted of drug-dealing crimes, on the presumption that if they get clean they're less likely to re-offend.

One Republican legislator says of the bill,

"Our prisons are pumped full. It would be nice to give judges discretion about whether to send somebody to prison or to some other treatment program. In reality, they're the ones that are sitting on the front lines, not the legislators who are making the laws."

Another bill pending in the state would expand drug courts. Hopefully we'll see other states -- and ultimately the feds -- follow suit.

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Original Post: 2/6/08

Bad news from Attorney General Michael Mukasey today. In written testimony to be delivered at a House Judiciary Committee hearing tomorrow, he will ask Congress to block the release of crack offenders currently serving sentences except for first-time, non-violent offenders. It's unclear whether Congress would act in time.

More....

California now has vending machines that dispense medical marijuana to users, 24/7, just like an ATM.

Check out this AP video.

The DEA wants to shut them down, even though they are legal under state law.

Another good thing about our Democratic candidates: All support ending the federal raids on medical marijuana clinics. Granite Staters has report cards for both the Democratic and Republican candidates. Here's where they were in 2003 and 2004.

I've never liked the bail bonds business. It was a big relief for my clients when our federal court went to a refundable cash deposit system some years ago. State courts should follow suit.

But I didn't realize that we are one of the only countries that uses the system -- in other countries, it's a crime to make a profit off of securing someone's release.

The New York Times has a very interesting article on this today, Illegal Globally, Bail for Profit Remains in U.S.

Bail bondspersons have been outlawed in llinois, Kentucky, Oregon and Wisconsin. Why? It's a system that discriminates against the poor. [More...]

One of the worst immigration policies we have is that non-citizens, including those present in this country legally, not only face mandatory removal if convicted of an assortment of non-violent crimes, but must first serve their full sentences in U.S. prisons and jails. If we know the defendant is going to be deported, why the cruelty of the double whammy of a prison sentence followed by removal, and why pay to house them for years before sending them back?

The Bush Administration today announced a plan to end the practice, and allow prisoners to shorten their sentences if they agree to removal.

Under current law, immigrants convicted of crimes are deported only after serving their sentences in this country. Foreigners behind bars, Ms. Myers said, include large numbers of immigrants who were legal residents, but lost their legal status as a result of being convicted of crimes.

Ms. Myers said the agency would work with states to devise parole programs allowing immigrants imprisoned for nonviolent crimes to reduce their prison time if they agreed to be deported immediately upon release. [More...]

The DEA is about to hire 200 new special drug agents:

Michele M. Leonhart, DEA Acting Administrator, announced last week that the funding provided in the Consolidated Appropriations Act, 2008 (H.R. 2764), will allow DEA to lift an agency-wide hiring freeze that was instituted in August 2006.

"This is an important and most welcome development," Leonhart said. "With this much-needed funding, DEA will be able to fill 200 Special Agent positions, as well as many vacant Intelligence Analyst and critical support positions. This legislation sends a strong and encouraging message to all of us at DEA as we continue our worldwide drug law enforcement mission."

President Bush signed H.R. 2764 into law on December 26, 2007. It provides funding for fiscal 2008, which began October 1, 2007.

The House vote on the bill is here and the Senate's here.

Both Hillary and Obama voted against the bill, although not for that reason. The DEA funding was but a tiny part.

The non-partisan Justice Project has a new policy paper (pdf) on jailhouse snitch testimony, one of the top causes of wrongful convictions. From the press release:

The use of jailhouse snitch testimony has been widely used throughout the American criminal justice system. Unfortunately jailhouse snitches are often utilized by prosecutors despite their testimony being widely regarded as the least reliable form of evidence in the criminal justice system. A 2005 study of 111 death row exonerees found that 51 were wrongly sentenced to death in part due to testimony of witnesses with incentive to lie.

More...

Adam Liptak in the New York Times has a new column on the recent sentencing guideline reductions for crack cocaine. He posits that as a result of the reductions, Congress may be less likely to reduce mandatory minimum penalties for crack cocaine since Judges now have more discretion in sentencing and Congress won't want to give judges unfettered discretion.

There are several bills kicking around Congress meant to harmonize cocaine sentencing laws. But, perhaps perversely, the Supreme Court’s decisions last Monday may make Congressional action less likely. Letting judges have too much discretion does not sit well with some legislators, and that discretion can be controlled through mandatory minimums.

His source for that theory is former (very conservative) Judge and victims' rights advocate Paul Cassell. I've never agreed with Cassell about anything, particularly his attempts to repeal Miranda rights, push the death penalty and make light of false confessions and wrongful convictions, but I sure hope he's wrong on this one.

Liptak describes the penalties for powder as if they are way too lenient,

Fifty grams of crack equals a guaranteed 10 years. It takes five kilograms of powder to mandate the same sentence. Five kilos is a lot of cocaine.

I think that's a backwards way of looking at it. The better view is that ten years is a long jail sentence -- for any non-violent drug offense, regardless of the quantity.

I'm wondering if Liptak's use of the phrase "a lot of cocaine" is the result of someone whispering in his ear that the only way the crack penalties go down is if the powder penalties go up. That would be a terrible injustice.

The pending reform bills are here. Two call for equalization. The bills could be put on the agenda early next year. It's time to start contacting your Senators and Congresspersons and telling them to equalize the crack and powder cocaine penalties at the current powder levels. Two wrongs don't make a right.

There's been a reordering of priorities at the Justice Department this year.

Cybercrime, the majority of which involves child pornography, is now the FBI's third-highest priority, behind counterterrorism and counterintelligence.

Those convicted include:

...the former head of the Virginia American Civil Liberties Union, an Ivy League professor, a sheriff's deputy, a Transportation Security Administration employee, an Army sergeant, a former Navy cryptologist, a contractor working at Abu Ghraib prison in Iraq, a National Institutes of Health researcher and a U.S. Capitol Police officer.

Some argue it's overkill.

There will be a Democratic debate tomorrow in Iowa, where the January 3 primary essentially is a toss-up between Hillary Clinton, Barack Obama and John Edwards.

In light of the Supreme Court decision this week in Kimbrough v. U.S. (pdf)authorizing federal judges to consider the great disparity in penalties for crack and powder cocaine offenses in deciding whether to sentence crack defendants below the federal sentencing guidelines ("...it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes") and yesterday's decision by the U.S. Sentencing Commission to make retroactive the recent and relatively minor crack cocaine sentencing guideline reductions, I'm hoping the candidates will be asked their positions on mandatory minimum sentences and what they will do as President to change them.

I've put together a chronology of how the mandatory sentences came about and what efforts to change or resist changing them have been made since.

In light of yesterday's decision by the U.S. Sentencing Commission to make the reduction in federal sentencing guidelines for crack cocaine offenses retroactive, many are wondering just how these reductions will be effected.

The Sentencing Commission has answered this in part by modifying U.S.S.G. 1B1.10. Here's the new version. [Note: changed to user friendly link]