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What the New DOJ Drug Policy Means for Everyone

Monday, May 15th, 2017

Jeff Sessions -Photo/Alex Brandon

Jeff Sessions -Photo/Alex Brandon

Attorney General Jeff Sessions announced that he has rescinded the prior Department of Justice policies of Attorney General Eric Holder on sentencing and charging in drug cases. Under Attorney Generals Eric Holder and Loretta Lynch, both reversed prior drug policies which saw many minorities and others going to prison for decades for low level, non-violent drug involvement due to mandatory minimum sentences. Under Attorney General Holder, the Department of Justice concentrated more efforts and resources on drug defendants who were violent and/or had substantial involvement with drug trafficking. Sessions, known as the law and order Attorney General, has saw fit to turn back the progress seen in the Eric Holder era.

Sessions announced last week that he intends for all U. S. attorneys to charge the most serious crimes and seek the highest penalties for all drug defendants in federal courts. Mandatory minimums and lengthy sentences began in the 1980’s to combat the crack cocaine epidemic. After 30 years since the original law and order mandatory minimums of the Regan era sought to increase drug sentences, there is still an epidemic of drugs—known currently as the opioid epidemic. In the prior mandatory minimum era, there were persons with very low drug involvement who spent decades in jail for having very small amounts of drugs in their possession and with no prior criminal convictions, due to mandatory maximum minimums.

Sessions declared the need for a change in policy due to an increase in crime; in fact, crime has been decreasing and is at its lowest in many years. And while many national prosecutors praise Sessions and the new policy, others who seek criminal justice reform abhor the new policy, as it will simply fill up jails. And maybe that’s exactly what Sessions wants to do. Private prisons are a high priority for those who earn big bucks for building and maintaining private prisons.

What is needed today to curtail drug use and abuse is the same thing that was needed during the 1980’s. Drug treatment and prevention is a key to decreasing the drug problem in the U.S. Opponents to the increased drug sentences and in favor of overall criminal justice reform include progressives and conservatives alike. The Charles Koch Institute found that the majority of Trump voters even contend that criminal justice reform is important with its findings:

“A poll last month by the conservative Charles Koch Institute found that 81 percent of Trump voters think criminal justice reform is “very important,” and 63 percent said judges should have the freedom to assign forms of punishments other than prison, which is the opposite of what mandatory-minimum sentences require.”

It will be interesting to note if the new policy will target mainly minorities, as in the past or include individuals across the country involved in the “new” opioid drug epidemic. There is a provision in the new drug policy that will allow for prosecutors to use their judgment. As a former prosecutor, I know that discretion is rarely allowed when a policy calls for the highest sentences and charges.

I suspect that as in the past, the majority of those getting arrested, charged and sent to prison will be people of color. Studies have found that minorities and whites use drugs at or about the same rate. Yet, prisons overflow with people of color. African Americans are disproportionately targeted and sent to prison for lengthy jail sentences in the mandatory-minimum era. That was one of the underlying reasons why Attorney General Eric Holder sought to change the policies.

The new war on drugs, a la Sessions style, should have everyone concerned. And this time around unlike the 1980’s Regan era, everyone who knows someone with a drug problem should have reason for concern. The new policy will likely affect John and Jamal.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor. She often appears on MSNBC, PBS, CBS News, Al Jazeera and Fox 5 DC.

Supreme Court Hears Case on Why Juveniles Should Not Die in Jail

Tuesday, October 13th, 2015

supcourt_buildingAs a trial lawyer and former prosecutor, I always seek justice and fairness during sentencing hearings.  When defending an individual, I argue the merits of a sentence based on the specifics that relate to that person.  Everyone is unique in what brings them before the criminal justice system and how the court should sentence them.  On Tuesday, the U. S. Supreme Court will hear  oral arguments in the case of Henry Montgomery, a Louisiana man with a low IQ of 70, who was convicted as a juvenile for killing a police officer and sentenced to the death penalty almost 50 years ago.  His death penalty sentence was overturned in 1969. And he was given a life sentence without the possibility of parole.

 

Montgomery’s case comes before the U.S. Supreme Court following a 2012 Supreme Court case ruling that those who were juveniles at the time  of their offense must be given a sentencing hearing to determine if life without parole is appropriate  under their specific circumstances.   They must be allowed to present mitigating circumstances to rebut a life without parole sentence and not face a mandatory sentence to die in prison.

 

Mr. Montgomery’s case occurred many years before the new law in 2012 took effect. His lawyers will argue to the court on behalf of Montgomery but possibly affecting perhaps 2,000 other youth lifers that the 2012 law should be applied retroactively.  If so, then Montgomery would have the opportunity to present mitigating factors  at a new sentencing hearing on why his life without parole sentence should be changed.

 

 

It is a legal debate of major proportions on whether the law should be considered retroactively. Most laws do not apply retroactively.  It depends on whether the court views the change in law as substantive or procedural.  If  the Supreme Court rules the  2012 ruling should be considered substantive, then Montgomery will be entitled to his new day in court for another sentencing hearing.

 

 

Many states prohibit minors from drinking alcohol until the age of 21.  Most states now have restrictive driving licenses until an individual reaches the age of 21.  Persons cannot vote until they reach the age of 18.  The reasons why state laws limit driving licenses and drinking alcohol is due to a realization that juveniles and teenagers are not often sufficiently able to reach sound decisions that will affect their lives.

 

The U. S. criminal justice system is one that is presumably  based on justice and fairness.  Many prosecutors ask for sentences that are just and fair.  While many sentences handed out by judges seem neither just or fair when it comes to mandatory sentencing, this is an opportunity for the Supreme Court to do what is just and fair.

 

If teenagers cannot be relied upon to drink alcohol or drive responsibility until reaching a certain age, it is difficult to see how they can be relied upon to make appropriate judgments when it comes to more gruesome issues like taking someone’s life.  That is not to suggest that in either of these situations that no punishment should be given.  The punishment for any particular crime should take into account any mitigating circumstances such as age, mental ability, IQ and any other relevant  factors.

 

It is never too late for the criminal justice system to be fair and just.  Justice has no time limits.  While many victims may object on the grounds of opening old wounds. I beg to disagree as that being a valid  reason for the Supreme Court to  do what is fair and just.

 

Those who are exonerated years later are given freedom. There is no statute of limitations on the court reversing any wrongs and doing what justice and fairness demand.  It’s never too late  for the  Supreme Court and our criminal justice system to be just and fair.

 

 

Debbie Hines is a trial lawyer and former prosecutor.  She often appears on air on Al Jazeera, MSNBC, CBS News, C-Span, BET, Fox 5, PBS News Hour and others.

 

 

AG Eric Holder Announces Strides in Sentencing

Tuesday, February 17th, 2015

Eric_Holder_official_portraitOn Tuesday, Attorney General Eric Holder spoke at the Press Club in D.C. and gave what may be one of his last speeches before stepping down. He announced that there have been quantitative strides in his actions taken to reform criminal sentencing in America. Holder realized very early on that the criminal disparities in sentencing in drug cases resulted in African Americans being sentenced to higher sentences and to mandatory minimums. Attorney General Holder stated, “For years prior to this administration, federal prosecutors were not only encouraged – but required – to always seek the most severe prison sentence possible for all drug cases, no matter the relative risk they posed to public safety. I have made a break from that philosophy.” Data compiled by the U.S. Sentencing Commission shows that the efforts made by Holder have helped to dramatically reduce mandatory minimums and to reserve higher and harsher sentencing to more serious offenders. Attorney General Holder’s approach was to reserve the more severe sentences to those offenders that deserved it, instead of indiscriminately applying harsh sentences to every drug defendant coming before a federal court. The change in policies affects the nonviolent drug cases and allows the federal prosecutors to use discretion in these cases.

Attorney General Holder’s approach as Attorney General was to make America less dependent or reliant on incarceration. He noted in his speech the effect of the previous approach to criminal justice saying “After all, although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of its prisoners. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown by almost 800 percent over the same period.” And most studies have shown that this increased incarceration has not improved safety to our communities. But studies have shown that African American men and Hispanic men make up almost 50% of the U.S. prison population while black men make up 6% of the U.S. population. The Sentencing Commission confirms that numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record.

Attorney General was responsible for having President Obama to sign the Fair Sentencing Act, which reduced the inappropriate and unjust 100-to-1 sentencing disparity between crack and powder cocaine. And although the disparate gap was reduced to approximately 18-1, it is a vast improvement. African Americans are more likely to use crack cocaine over white Americans, while white Americans more likely use powder cocaine. Yet, crack cocaine uses powder cocaine as a base. There should not be any distinction in sentencing between the two.

Perhaps, the effects of Holder’s change in U.S. attitudes to incarceration can be seen in places like Kentucky, Texas, Ohio and Pennsylvania – where governors and legislatures of both parties have provided a model for others to emulate by directing funds away from prison construction and towards programs designed to reduce recidivism. Building new prisons in communities is not the answer to the issues of criminal justice.

Overall, in Fiscal Year 2014, the U.S saw its first reduction in the federal prison population in 32 years. And perhaps, more importantly, the U.S, under Holder and the Obama administration has achieved side-by-side reductions in both crime and incarceration in more than 40 years. Holder stated that improvements and changes to the criminal justice system under his leadership are just a beginning for laying a foundation for a new era in American justice.  If confirmed by the Senate,  hopefully, US Attorney General nominee Loretta Lynch will continue to work on and improve upon what Attorney General Eric Holder has successfully started under the Obama Administration.