A FOURTH CIRCUIT JUDGE GETS FED UP

On June 19, the Fourth Circuit Court of Appeals ruled that a sentence of life without the possibility of parole was indeed the legally correct one for Tony Gregg, a Richmond, Virginia cocaine addict and sometimes penny ante drug dealer.

The appeals court ruling came about after the federal judge who originally presided over Gregg’s trial tried to a way around the federal sentencing guidelines that mandated an automatic life sentence for a 3rd felony drug conviction. Instead, the judge attempted to reduce Gregg’s sentence to 25 years in prison.

The 4th Circuit’s three judge panel ruled that the original judge had erred by trying to reduce the sentence, and that Gregg was obliged to serve an iron clad LWOP. Period, end of story.

While the 4th Circuit’s panel was unanimous in their decision, one of the three justices, Judge Andre Davis, couldn’t let the matter go quite so simply, thus wrote his own concurring opinion—in the form of what amounts to a long Op Ed.

Davis is a skilled and impassioned writer and his essay/opinion is worth reading in its entirety. (It starts on p. 19 of the appeals ruling which you can access here.)

I’ve excerpted (and edited) some of the most relevant sections below:

The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond.

[So] the judge….elected to reconvene the sentencing proceeding and to impose, instead, a twenty-five year, within Guidelines sentence. As the panel opinion makes clear, we are constrained to undo the district court’s stab at achieving a more just sentence.

The record shows that Gregg was a classic “utility player” in America’s forty-year “war on drugs”: user, seller, “snitch.” A tenth-grade drop-out (after repeating the second grade and the seventh grade) with four half-siblings, he began to use illegal narcotics in his early teens. For a time, he lived in an abusive family environment; later, he moved between his mother, grandmother, and father, sometimes in Virginia, sometimes in Ohio.

As a young man, he attempted suicide more than once (although he described the episodes as mere attempts to “get high”). Throughout his 20s and early 30s, he was in and out of jails and prisons on a regular basis, sometimes for assaultive behavior. He was convicted of illegal gun possession in 2001 and served a three-year federal prison sentence.

Later, once again released from incarceration and having adjusted reasonably well upon his return to free society, in consideration for unspecified monetary compensation, he became a highly-valued, highly-effective confidential informant for the Federal Bureau of Investigation’s Violent Crime Task Force in Richmond, on whose behalf he engaged in half a dozen undercover drug transactions from mid-2008 through early 2009.

Sometime in early 2009, during his habitual association with drug users and dealers while working on behalf of the FBI to prosecute others involved in the drug trade, Gregg fell off the wagon and began to use and sell illegal narcotics again……

…[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.”

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison…..

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure…. Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful … the concern about drugs and drug problems is, if anything, magnified, intensified.”

I share the district judge’s dismay over the legally mandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.

As a nation, we are smart enough to do better.

(NOTE: A thank you to Doug Berman and Sentencing Law and Policy for pointing out the eloquence of Davis’s concurring opinion.)

AND ABOUT THAT DRUG WAR—40 YEARS AND A TRILLION DOLLARS LATER, THINGS HAVE GOTTEN WORSE, NOT BETTER

Now that we’re on the topic, it seems like a good time to highlight an exceptionally illuminating report on the cost/benefit of the drug war by my friend, the AP’s Martha Mendoza.

Here are a few relevant clips:

After 40 years, the United States’ war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what? Drug use is rampant and violence even more brutal and widespread.

Even U.S. drug czar Gil Kerlikowske concedes the strategy hasn’t worked.

“In the grand scheme, it has not been successful,” Kerlikowske told The Associated Press. “Forty years later, the concern about drugs and drug problems is, if anything, magnified, intensified.”

This week President Obama promised to “reduce drug use and the great damage it causes” with a new national policy that he said treats drug use more as a public health issue and focuses on prevention and treatment.

Nevertheless, his administration has increased spending on interdiction and law enforcement to record levels both in dollars and in percentage terms; this year, they account for $10 billion of his $15.5 billion drug-control budget.

[SNIP]

Using Freedom of Information Act requests, archival records, federal budgets and dozens of interviews with leaders and analysts, the AP tracked where that money went, and found that the United States repeatedly increased budgets for programs that did little to stop the flow of drugs. In 40 years, taxpayers spent more than:

$20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico — and the violence along with it.

$33 billion in marketing “Just Say No”-style messages to America’s youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have “risen steadily” since the early 1970s to more than 20,000 last year.

$49 billion for law enforcement along America’s borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.

$121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.

$450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the U.S. were serving sentences for drug offenses.

At the same time, drug abuse is costing the nation in other ways. The Justice Department estimates the consequences of drug abuse — “an overburdened justice system, a strained health care system, lost productivity, and environmental destruction” — cost the United States $215 billion a year.

Harvard University economist Jeffrey Miron says the only sure thing taxpayers get for more spending on police and soldiers is more homicides.

“Current policy is not having an effect of reducing drug use,” Miron said, “but it’s costing the public a fortune.”

DID WALMART DISCRIMINATE AGAINST A MILLION WOMEN?

It’s an really, REALLY unfun month for big corporations trying to dodge lawsuits from gaggles of angry women.

First Walmart. Monday’s New York Times editorial explains the matter well.

For nine years, Wal-Mart has fought to stave off a class-action lawsuit alleging that the company has long discriminated against its female workers in pay and promotions. So far it has avoided a trial on the merits of the issue. The battleground instead is whether the million or so women who have worked for Wal-Mart since 2001 really constitute a class, which the company vigorously disputes. In 2004, a federal district court judge said they did, and in April the Ninth Circuit Court of Appeals agreed, ruling the case could proceed.

Now Wal-Mart has taken the class issue to the Supreme Court. It is probably a smart legal move, given the court’s clear tendency to rule in favor of corporations, particularly when big classes or discrimination claims are involved. We hope the court resists the temptation to toss out the case, which would force women to file lawsuits one by one. Wal-Mart’s employment practices deserve a full hearing.

Agreed.

It seems the whole thing started when nine women working for WalMart realized that they were being paid less than men who did the same work, plus the guys were being promoted more often.

A district judge who found in favor of the women noted that, according to statistics, women working in Walmarts in every region of the country were being similarly underpaid when compared to their male counterparts.

What the Supremes will have to decide is whether that means every one of the one million woman working at Walmart have been discriminated against. In other words, do the female workers at Walmart constitute a class? Or should their suits be—as a very jittery Walmart hopes—simply taken on a case by case basis.

One million women in a class action suit would make the Walmart action the largest employment discrimination lawsuit in American history—a stellar designation that Walmart would prefer to avoid.

WHICH BRINGS US TO PREMPRO—FEWER WOMEN SUING, BUT BIG POTENTIAL PAYOUTS

PremPro is the hormone replacement drug that, at one time, was the most popular on the market. It is made up of Premarin, a form of estrogen that is made from the urine of pregnant mares (gross, but there you have it), and Provera, a form of artificial progesterone.

Wyeth made Premarin, Upjohn, Provera. Wyeth eventually packaged the two together as PremPro. And, for years, doctors prescribed by the bucketful.

Around 20 years ago, however, some of the nation’s more research-savvy OB/GYNs stopped prescribing PremPro when other hormone replacements drugs were developed that more closely mimicked the body’s own original hormones, and thus were deemed safer (and had fewer side-effects).

Still the preponderance of American doctors continued to go with the familiar PremPro. To date, it is estimated around 6 million women worldwide have taken the drug.

Then in 2002, the Women’s Health Initiative made headlines when they stopped a massive study (sponsored by the National Institute of Health), after they found that women in the study who took PremPro were more likely to get breast cancer than those who did not.

PremPro-taking women with breast cancer wondered if Wyeth had suspected the risks and ignored them. Lawsuits resulted. Then more lawsuits.

Pfizer bought Wyeth around a year ago (and Upjohn in 2003)– along with it, as many as 9000 lawsuits filed by women with breast cancer who claimed that PremPro was, at least in part, to blame for their illness—and that Pfizer/Wyeth hid what they knew of its dangers..

At first, Wyeth/Pfizer was able to get a bunch of suits dismissed, but now the stronger suits are arriving in court, and the tide appears to have turned.

Out of the 12 cases that have thus far gotten in front of a jury, the score is Pfizer 5, women 7. (Here’s the result of one such case from last year., in which the jury concluded that the drug company purposely hid the risk of cancer.)

At the end of last week, Pfizer settled another case before trial.

Monday, a Pennsylvania Superior Court gave plaintiffs another win when she ruled that the two-year statue of limitations for women who allege their breast cancer was caused by PremPro started, not from the day they were diagnosed with cancer, but from the day the Women’s Health Initiative study was released.

Stay tuned. This issue is far from over.

On Tuesday, lawyers for 31-year old Cameron Douglas, the son of actor Michael Douglas, cut a deal with federal prosecutors for charges that the younger Douglas had moved quite a bit of meth and some cocaine over a three year period, plus been caught with heroin when he was supposed to be under house arrest. Under federal sentencing guidelines, the minimum for a crime like his was 10 years in lock-up. Again, that’s the minimum. In a Federal District Court in Manhattan, Douglas got half that: a 5-year sentence.

The NY Times reports on the Douglas story. And here’s what the AP had to say.

So did his famous family help? Oh, sure. Of course. It is preposterous to think otherwise. More likely having a family who could afford a smart lawyer, and who also knew how to make a good emotional case in 37—count ‘em—letters of support helped the most. There are a lot of federal judges who are sick to death of handing down monster sentences to people who are addicts looking to support their habit. Douglas appeared to be dealing in more quantity than that. But the letters explained that he was a poor little, famous parent-stunted, drug-addicted rich man/boy—yadda, yadda, yadda. Or whatever it was that Michael Douglas wrote. Gee, Officer Krupke and all that. And it’s likely true.

But the sentence wasn’t entirely out of line. Surely, the judge and prosecutors cut him something of a break. But he cooperated—translation, he snitched, or tried to snitch (It isn’t quite clear). Had he been poor and a gang member, he’d have done a lot more time. I know someone of about Douglas’s age who was sentenced earlier this year and fell into precisely all the same categories as Douglas—short the famous friends and family, and stellar opportunities growing up. (He got caught dealing for a duration of several years, but was no where near top of the pile, non-violent charges, cooperated with prosecutors, I mean, unlike Douglas, he named names.) But the guy I know is a former gang member from the projects and is doing 14 years federal time (and very relieved at that sentence. He knew it could have been a lot longer). So let’s not pretend that the goddess of criminal justice is blind to influence.

Still, speaking purely personally, it is hard for me to resent the five year, cut-down jolt as I can see no particular public good served by a longer sentence. Five years means that Cameron Douglas has a chance at making a life for himself, becoming a productive tax payer and a decent man. Let’s hope he takes it.

Are there lots of instances where others are at least as deserving of that chance?

Yep.

Here’s one random example. There are many, many, many more,

The murder rate in Cuidad Juarez exceeds that of Baghdad.

And there is no one better equipped to take you to the heart of the disintegration of this once lively, now deadly city than Tuscon-based journalist/writer Charles Bowden who has been immersing himself in Cuidad Juarez off and on for 20 years.

The result is his newest book, Murder City: Ciudad Juarez and the Global Economy’s New Killing Fields

Bowden is a dream of a prose stylist, a deep and fine cultural analyst, as well as terrifyingly gutsy as a reporter (read the chapter about his meeting with the sicario, the Mexican assassin, and you’ll understand what I mean).

For those of you interested in such matters, you have two opportunities this week to see and hear Bowden on the subject of Cuidad Juarez and his attempts to make sense of the ghastly violence running rife through this wounded and wounding city.

On Wednesday, 4/21, Bowden will be in conversation with my pal, KPCC’s Aldofo Guzman Lopez at the Los Angeles Central Library, 630 W. 5th Street, LA, 90071, at 7 p.m. (There’s no charge but reservations strongly recommended.)

AND, because this weekend is LA Times Festival of Books weekend (more on that as the week wears on, and yes you should come to the LATFOB, or you’re totally missing out and I’m really, really sad for you) Bowden is, of course, on a panel—being interviewed by none other than very good pal, Marc Cooper. The panel is on Sunday at 3 p.m. at UCLA’s Rolfe Hall. (Also free, and reservations also recommended.)

The panel, titled, Life on the Edge: Violence and the West, also features the marvelous Deanne Stillman.

PS: I will be moderating a panel of fantastically cool writers on Saturday, at 12:30 in Haines hall. So mark your calendars immediately. More about this later.

Also, my pal Tod Goldberg will be on a panel at 2 pm on Saturday at Young Hall and, since he’s much funnier than pretty much anyone I know (or anyone you know), and he’s also a wonderful fiction writer, you should go to that too, right after. (More on this later too.)

Okay, yes, yesterday was Earth Day.

But I’m sure you’ll be happy to know, that today is a National Call-In Day that is a big part of Crack the Disparity National Month of Advocacy—- a month-long coordinated push to eliminate the sentencing disparity between crack and powder cocaine.

Unfortunately for the organizers—and those of us who believe this to be an important issue—”Crack the Disparity National Month of Advocacy” (CTDNMA???), just does not have the snappy ring of say….. well…Earth Day.

OR

Take Our Sons and Daughters to Work Day, which also occurs today.

OR

International Talk Like a Pirate Day (Okay, that has its own problems this year, I grant you—and it’s not until September anyway).

In any case, here are the instructions should you want to participate:

To participate call the U.S. Capitol Switchboard right now at 202.224.3121, and ask to speak to your representatives in the Senate and House. Urge them to support and co-sponsor H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act in the House and legislation in the Senate that eliminates the 100 to 1 disparity between crack and powder cocaine.

(I’m guessing that, if you call, given recent events, it’s probably best not to talk like a pirate…but if you call today, in addition to the above-mentioned days, it is National Talk Like Shakespeare Day, which opens a host of possibilities.

And then Friday, it turns out, is National Hairball Day so if you call tomorrow you could…..

….oh, never mind. Just call.)

This is a real contender for this year’s bad judgment Olympics. How do we hate what these school administrator’s did? Let us count the ways.

Here’s the story (Jason Song of the LA Times reports):

Porter Middle School administrators believed a boy was dealing pot on campus. So they allegedly sent a student to buy some.

The sting worked — to a point. The student successfully bought drugs and the administrators at the Granada Hills campus reported the incident to authorities.

But although Los Angeles Police Department officers are investigating the suspected marijuana dealer, they also are scrutinizing the three administrators who allegedly orchestrated the buy, said Michel Moore, an LAPD deputy chief, on Wednesday.

It is a felony to ask a minor to buy drugs.

The administrators have also been reassigned by the Los Angeles Unified School District to positions away from the Granada Hills campus, which was named a California Distinguished School in 2007, while the investigation is ongoing. In a letter to parents, Supt. Ramon C. Cortines said the school’s principal, an assistant principal and dean had been removed.

Thankfully, the kid whom the administrators recruited to be their narc, is not being investigated by anybody.

Read the rest.

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AND IN OTHER STUPID ADMINISTRATOR NEWS: It seems that the Corona del Mar school administrator who spiked the drama department’s idea of putting on the musical RENT has since relented.
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(Note: The kid in the photo has nothing to do with this situation. He’s just a random middleschooler.)

LAST WEEK I ASSIGNED some of my smart USC students to each write a 300-word news story explaining one of the propositions that will appear on the California ballot on Tuesday.

Below you’ll find clips from the resulting commentaries, with still more to come tomorrow.

(USC student Holly Villamagna’s assessment of Prop. 11, posted earlier, may be found here.)

ALSO TOMORROW, A FULL LIST OF ENDORSEMENTS.

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first…PROP. 6

Proposition 6 is a 30-page monster that is arguably the worst thing on the November 4 ballot—even worse, in some ways, than the loathsome Prop. 8 because the social and fiscal razor-blades it contains are so perniciously disguised.

When students, Sarah Eigner, Dina Diaz, and Chelsea Dunlap, researched the issue, they got quickly to the heart of the complicated and deceivingly written proposition (and they did it with out any nudging or cues from me).

Here’s what they wrote:

Read the rest of this entry »

Bruce Riordan is the director of anti-gang operations for City Attorney Rocky Delgadillo’s office, and a former federal prosecutor. In other words, the guy is not anybody’s bleeding heart when it comes to gangs.

Yet, he is a nuanced thinker on the subject, and together with Delgadillo, Riordan has written a thoughtful article for Wednesday’s Daily Journal, the publication that LA’s lawyers, judges and other legal types all read religiously.

Riordan sent the article over to me figuring, quite rightly, I might find it interesting. I did, indeed, and thought you’d be interested as well.

(NOTE: The Daily Journal may be accessed by (really expensive) subscription only, so I have posted slightly longer excerpts than I usually do.)

In the article, the men talk about the fact that Mexico is experiencing a huge and very violent rise in gang activity. As a consequence, they write, the Mexican government is being sorely tempted to react to their new gang crisis with methods that are heavy-handed in the extreme. They point out that the purely hard-core/shock-and-awe approach to gangs is precisely the strategy that has repeatedly been shown not to work.

(Think Daryl Gates’ Big Blue Hammer.)

When it comes to gangs , the use of a bludgeon alone—i.e. enforcement without prevention and intervention—inevitably produces of host of unintended consequences—many of which could easily blow back toward us, and not in a good way, say Riordan and Delgadillo.

Now here are those excerpts:

The images are all too familiar: random kidnappings, police officers assassinated by criminal gangs, journalists killed in cold blood as retribution for their latest investigations, and, even judicial officers murdered for their roles in the criminal justice system. All this amid cries of foul play from victims alleging both criminal and official misconduct.

These are not scenes from the Iraq War or from Colombia’s showdown with the Pablo Escobar syndicate in the late 1980s. They are drawn directly from today’s headlines in Mexico, and from the border cities of Juarez, Nogales and Tijuana, the latter a mere three-hour drive from downtown Los Angeles. Indeed, this past weekend, the Los Angeles Times reported that children in Tijuana are suffering from a form of post-traumatic stress disorder due to the alarming levels of violence there.

While the U.S. media has covered the violence, the Mexican government’s response, both legal and extralegal, has largely been overlooked. But Mexico’s President Felipe Calderon has openly declared “war” on drug gangs, and the mayor of Nogales, in Sonora, has called for the use of “heavy-handed” tactics akin to the surge in Iraq.

Make no mistake: Mexico is now undergoing a fundamental legal, as well as political, crisis; and the fabric of its legal system is being tested. As a result, current events in Mexico should be cause for close attention in our local legal community and perhaps even closer scrutiny.

[SNIP]

Read the rest of this entry »

On Sunday, the Washington Post Magazine ran an excellent cover story about one man out of the thousands upon thousands of low-level offenders who have served or are serving very long sentences for dealing crack cocaine. Here’s how the story begins:

ON HIS 18TH DAY OF FREEDOM, Michael Short awakened before dawn. In prison, corrections officers had paced the halls at night, jingling keys and shining flashlights. Now Mike slept fitfully, even in a king-size bed.

It was a damp, gray Tuesday late in February. He slipped on a pinstriped shirt that hid his tattoos, slid his feet into shiny new loafers and rubbed coconut oil into his hair, cut razor-straight at the temples and flecked with gray. He was 36, with a basketball player’s long-legged gait and the lined brow of a man well acquainted with consequences. Standing in front of the bathroom mirror, he nervously knotted a silver-and-white tie that his girlfriend had bought him at Macy’s.

….Over breakfast, he practiced the testimony he was scheduled to deliver that afternoon before a congressional subcommittee:

My name is Michael Short. I am here because in 1992 I was sentenced for selling crack cocaine. Before that, I had never spent a day in prison. I came from a good family. I had no criminal history. I was not a violent offender. But I was sentenced to serve nearly 20 years. I was 21 years old.

The writer, Vanessa Gezari, has done a masterly job of using a compelling human story about one person’s experience to illuminate the whole issue of drug sentencing reform—including how we came to have penalties for crack cocaine offenses that are so much more severe than for any other controlled substance.

I think you’ll find it to be a really interesting and worthwhile read, at the end of which you’ll know a lot about an important issue that is deeply intertwined with the future of American incarceration policy.

BUT THERE’S MORE….

On Monday at noon, journalist Gezari participated in an online Q & A with readers. The transcript of the discussion may be found here.

In 2001 Education Week told this story about the Bush Administration’s decision to be hard core in its enforcement of one part of the Higher Education Act.

When police found a small amount of marijuana residue in her car the day before her 19th birthday, Marisa Garcia was handed a ticket and sent on her way. After she was convicted of drug possession and paid a $415 fine, Ms. Garcia thought the incident could be put behind her.

But the California State University-Fullerton student later discovered that her minor scrape with the law had cost her much more: Ms. Garcia ended up losing her eligibility for federal student financial aid because of a change three years ago in the Higher Education Act.

“It was the first time I had ever been in trouble with the law,” said Ms. Garcia, who worked extra hours in a flower shop and turned to her family to help pay her tuition and expenses. “When I found out that if I was a murderer or child molester I would still be eligible, I really got mad.”

Hard to blame her. With cases like Garcia’s in mind, college students, financial-aid associations, and civil rights groups have been working since then to challenge or overturn the provision—with no luck. (335 organizations from American Association of Collegiate Registrars and Admissions Officers to the United Church of Christ favor overturning it.)

According to Ed Week, even Republican Congressman Mark Souder, the guy who introduced the 1998 legislation, has indicated that the law was never intended to “reach back” and affect students with past drug convictions. It was meant, said Souder’s office, to derail applications if kids were convicted of drug crimes while they were applying for aid. (An explanation that has its own illogic, but whatever.)

Yesterday one of the constitutional challenges to the law finally had its day in court, but the 8th Circuit Court of Appeals rejected it. A new Ed Week blog post has the details (and here’s the ruling itself).

Constitutionality aside, why in the world would we want to punish a kid for some past transgression—particularly a kid who is trying to go to college?

Remember that the average high school graduation rate in America’s largest cities is at 50 percent, with cities like Baltimore, Cleveland and Detroit graduating even fewer. It would seem that if a kid does graduate and wants to go to college, we should be moving heaven and earth to help.

But instead we’ve got this idiotic provision that since 2001 has reportedly denied aid to approximately 200,000 students.

These are the days when I start to think some of our lawmakers really don’t like our nation’s children very well.

PS: And how has the media covered the story? Other than Ed Week and the wonkiest law blogs—I’ve found nothing. (Obviously, there are more important topics to explore.)