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March 30, 2014

With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums

As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff.  (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence.   Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact?  Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)

We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence.  Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case:  should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)?  How about her status as a newlywed?  Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?   

But rather than continue to obsess over the killer bride  (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms.  Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:

  • Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this informative speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.”  It provides great background on the past and present of federal drug sentencing.

  • US District Judge James Browning  provides a defense of the federal sentencing status quo in a lengthy opinion in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.

  • An on-going legislative sentencing reform debate developing around heroin in Louisiana, which is well covered in this notable news article headlined, "In heroin debate, a detour from sentencing reform." 

March 30, 2014 in Class activities, Current Affairs, Guideline sentencing systems, Interesting new cases | Permalink


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I found the article discussing the heroin debate in Louisiana to be of particular interest. The bill, which imposes a two year sentence for possession of any amount of heroin without possibility of early release, is clearly a mechanism to deter others from using heroin. I found it quite interesting that in addition to the theory of deterrence, the proponents of this bill also suggested that the two year minimum would act itself as rehabilitation as those offenders would have adequate time (2 years) to detox. Although you can commend the lawmakers swift response to the state's heroin epidemic, it seems as though this is only-at best-a temporary fix. Arguably, even if the theory of deterrence worked another related drug (or other type of crime) would become the norm and similar laws would need to be enacted to deter that conduct, as well.

Interestingly, it seems many other states are facing this same problem and, as a result, are charging heroin dealers with the death of their buyers. In Ohio, I believe, House Bill 508 provides if a buyer overdoses and dies, the dealer faces a life sentence and eligible for parole after 20 years if the overdose victim was an adult and 25 years if the victim was younger than 18. As we begin our discussion on drug-related charging, I am interested to discuss the various approaches states are taking to address the significant increase in heroin use.

Posted by: Carrie Thiem | Mar 30, 2014 7:12:45 PM

I agree with you, Carrie. While I think the goal of deterrence (and the Louisiana law in general) might work better when sentencing dealers of heroin, I'm not quite sure if punishing users of heroin with mandatory prison sentences is a long-term fix. Ultimately, I think drug users and addicts are in more need of rehabilitation than deterrence, and it seems like today's prisons are ill-equipped to give drug addicts the treatment they need. Longer prison sentences may deter addicts away from using heroin, but I don't think it will work to eliminate the main problems facing addicts, among them being a physical/psychological dependence on drugs. Thus, as you point out, even though a user may stop using heroin after his prison term, the person will still be prone to an addictive lifestyle and may turn to other drugs to satisfy this lifestyle.

Posted by: Kyle Schrodi | Apr 1, 2014 1:22:39 PM

It’s interesting to read Chief Judge Patti Saris’s Georgetown speech and then immediately read the Advocate article about Louisiana because Louisiana is proposing sentencing reform that is essentially opposite of the sentencing reform that Chief Judge Saris and the Sentencing Commission recommend. Chief Judge Saris recounts the history of mandatory minimums and harsh sentencing for drug offenders. She describes how in 1980s there was a sense that drugs were causing American communities to veer out of control. Drug use and drug trade were seen as major contributors to violent crimes and there was extreme pressure for Congress to act quickly. Today, she presents evidence that harsher sentencing for drug crimes have little deterrent effect. The decrease in violent crimes has been a result of changing economic and demographic factors, better policing methods, and changes in culture and attitudes, rather than the deterrent effect of harsh sentencing.

Louisiana seems to be reacting to the heroin epidemic in the same way that Congress reacted to crack cocaine in the 1980s – with a mandatory minimum in order to deter and detox. As the Atlantic article suggests, lawmakers in Louisiana seem blinded by the widespread fear of heroin and the destruction it is causing right now. For other crimes and drug offenses Louisiana is enacting “smart-on-crime” proposals geared toward prioritizing prison space for violent offenders and stemming incarceration costs, but when it comes to heroin they have blinders on. I think in an effort to act promptly they are turning to the easy but ineffective “solution” of mandatory minimums. If history is any measure, there will always be a new and destructive drug that wreaks havoc. But what Louisiana should take from history is that throwing addicts in prison and funneling more money into prison does not keep people away from drugs. Policymakers should question their knee-jerk reaction to increase prison sentences for whatever “It” drug is causing the most harm at the moment.

Posted by: Lauren Brady | Apr 5, 2014 1:53:22 PM

Lauren and Kyle, I agree. The Sentencing Guidelines seem to undervalue the role of addiction in drug crimes, considering mandatory minimums for nonviolent drug offenses. Here is an interesting article that combines this idea with the "point system" Professor Berman discussed last week: http://www.washingtonpost.com/opinions/george-will-the-sledgehammer-justice-of-mandatory-minimum-sentences/2013/12/25/959e39de-6cb2-11e3-a523-fe73f0ff6b8d_story.html.

This article references various situations in which individuals charged with nonviolent drug offenses received lengthy prison sentences (several got life without parole). The unifying reason is that the individuals refused to plead guilty and forced prosecutors to go to trial. The disparity in their potential guilty-plea sentences and post-trial sentences is pretty shocking. This sentence disparity, coupled with the nonviolent, addiction elements to these crimes, makes me wonder what mandatory minimums actually accomplish for many drug-related offenses. If keeping drug addicts off the street is the rationale, why not use use mandatory drug rehabilitation rather than prison?

Posted by: Kris Missall | Apr 6, 2014 2:58:47 PM

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