Later On

A blog written for those whose interests more or less match mine.

How Jeff Sessions is wrong about drug sentencing

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Radley Balko counts the ways in the Washington Post:

So Attorney General Jeff Sessions took to the pages of The Washington Post to write an op-ed last weekend. Sessions is rescinding an Obama administration policy that instructed federal prosecutors to avoid seeking mandatory minimums in some drug cases.

In Sessions’s defense, he did get one thing right, although he seemed to utterly miss the significance of it. And then he got a lot of things wrong. So many, in fact, that only a line-by-line review will do the whole thing justice.

So let’s get to it. Sessions begins:

Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.

So this is the thing Sessions got right. Drug trafficking is violent. It is violent because courts and other traditional nonviolent means of settling disputes aren’t available to anyone involved. And it isn’t just debts. Where purveyors of legal products compete for customers by offering a better product, a cheaper product or better service, drug traffickers win customers, or “turf,” by killing one another. This has always been true — of drugs, and of every other product sold on the black market.

It’s encouraging that Sessions realizes this. What’s puzzling is how Sessions can (a) acknowledge that black markets cause violence, (b) claim to worry about said violence, and yet (c) work behind the scenes to expand black markets. Sessions not only opposes legalizing drugs, but he also wants to return states that have already legalized recreational marijuana — and who seem to be doing just fine — to the days when marijuana was available only on the black market. Or to put it as Sessions does: If pot retailers in Colorado, Washington and the other legalization states need to collect on a debt today, they do what any other retailer does. They use the legal system. If Sessions had his way, pot dealers in these states would to back to collecting debts “by the barrel of a gun.”

Why does Jeff Sessions want people in Washington, Colorado, and the other states that have legalized marijuana to experience increased violence — violence that he himself acknowledges would be inevitable if he were to get his way? Is it really that important to make it more difficult for people to get high? What for Sessions would be an appropriate “dead bodies”-to-“euphorias prevented” ratio?

For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.

About 18,000 of those deaths involved prescription opioids, which are legally available. About 8,000 involved benzodiazepines, which are also available legally. Both of those types of drugs are made by pharmaceutical companies, prescribed by doctors and sold by pharmacies. Does Sessions believe those are all inherently violent industries? The Journal of the American Medical Association estimates that 88,000 people die each year from alcohol-related deaths. Does Sessions believe that Anheuser-Busch, Diageo and E & J Gallo run “deadly businesses”? What about the 480,000 people who die each year from smoking? Is tobacco a “deadly business”?

Moreover, there’s solid and mounting evidence that marijuana may be an effective substitute for opioids when it comes to treating pain. States that have legalized marijuana have seen a drop in hospitalizations for opioid addiction and overdose, suggesting that if it’s easily available, people prefer to treat pain with marijuana rather than with opioids. Which means that under Sessions’s preferred policy of pot prohibition, we’d almost certainly see much higher numbers of opioid addiction and overdose deaths.

Yet in 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law.

This isn’t an accurate characterization of the memo issued by former attorney general Eric Holder. The memo states only that in cases in which a defendant was in possession of enough drugs to trigger a mandatory minimum federal sentence, federal prosecutors should decline to charge the crime that would trigger that sentence if the defendant meets a number of criteria, including not having committed an act of violence in association with the crime, not being the leader or organizer of a trafficking organization, not having ties to cartels or major drug traffickers, and not having a significant criminal history.

I suppose in some sense the memo required prosecutors to “leave out” facts in that it asked them to charge less than what federal law permits. But prosecutors have always had the discretion to bring lighter chargers than what they could conceivably bring. Moreover, when you considerthe unfair, irrational way in which federal authorities measure drug quantities for the purpose of charging and sentencing, the Holder policy at best made the playing field slightly more level.

This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.

There are any number of reasons the number of federal drug prosecutions might drop. But note the range of years Sessions chooses here. The Holder memo was in 2013. Why go back to 2011? Because that’s when federal drug prosecutions peaked. But there was a big drop between 2011 and 2012, which wouldn’t have been affected by the Holder memo at all. There’s also a big drop between 2013 and 2014. You might argue the Holder memo played a role there, but the memo wasn’t issued until August of 2013. And between 2014 and 2016, the number of prosecutions dropped, but only slightly. I don’t see a handy table for average sentence length by year, but I’ll guess that Sessions chose 2009 as his baseline for that statistic.

Of course, if the Holder memo did reduce drug sentences for nonviolent offenders, good. That’s exactly what it was supposed to do. The evidence for this isn’t overwhelming, but the Sentencing Commission did report in March of 2016 that federal prosecutors were focusing less on low-level offenders, and more on serious and violent offenders. One would think that this is a positive trend, too.

For Sessions to show that this was somehow detrimental to public safety, he needs to show a link between lenient sentences and crime. And here his argument falls to pieces.

Before that policy change, . . .

Continue reading.

Read the whole thing. There’s a lot more.

Written by LeisureGuy

20 June 2017 at 7:43 pm

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