Archive for the ‘Drug Policy’ Category

Thoughts on the Holder Address: Two Cheers for the New Paradigm

Sunday, October 20th, 2013

In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies.  I wrote these reactions for the Federal Sentencing Reporter.

Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at a lesser cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.

Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm.   (more…)

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Milwaukee Arrests, Part IV: Racial Disparity Story Similar in Chicago, Sort Of

Sunday, August 25th, 2013

In the first post in this series, I explored the persistent racial disparities in Milwaukee arrests.  How does Chicago compare?  In a nutshell, the overall disparity rates are remarkably similar in Milwaukee and Chicago, but the War on Drugs drives the disparities to a much greater extent in the Windy City than here.

Let’s start by taking a look at black and white arrest rates in Chicago since 2000:

Chicago Arrests

As is apparent, arrest rates have been coming down for both races, but white rates remain well below black.

Here is what has been happening in Milwaukee during the same time period:   (more…)

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Arrest Trends in Milwaukee, 1980-2011–Part One

Sunday, June 30th, 2013

Earlier this month, the ACLU released this interesting report on arrests for marijuana possession. The ACLU found a steady increase since 1990 in the number of arrests nationally for possession of pot. By 2010, arrests for this crime had come to account for nearly half of all drug arrests. Moreover, the ACLU also found that racial disparities in marijuana arrests increased right along with the number of arrests, even though surveys indicate that whites and blacks use marijuana at about equal rates.

Neither Wisconsin nor Milwaukee County performed well on the racial disparity front. Statewide, blacks are six times more likely to be arrested for marijuana possession than whites, which is considerably higher than the national average of 3.73. Milwaukee County’s disparity number was also above the national average at 4.7.

Coincidentally, at about the same time the ACLU released its report, the federal government’s Bureau of Justice Statistics unveiled a new on-line, interactive arrest-data tool, which permits detailed searches of arrest data from individual cities dating back to 1980. I thought it would be interesting to examine Milwaukee’s numbers over time. I focused on arrests by the Milwaukee Police Department, which differed from the ACLU’s focus on county-level data. (The MPD is only one of several law enforcement agencies in Milwaukee County, albeit the single largest.)

The first graph below shows the annual number of arrests by the MPD by race. Unfortunately, no data were available for 1986, 1998-2000, or 2004; otherwise, every year from 1980 through 2011 is included.   (more…)

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Why Does Wisconsin Arrest Twice as Many People for Marijuana Possession as Minnesota?

Tuesday, September 11th, 2012

In 2010, Wisconsin law enforcement agencies reported 16,111 arrests for simple possession of marijuana, including both adult and juvenile offenders.  The same year, Minnesota agencies reported only 7,453.  With this one glaring exception, Wisconsin is not otherwise noticeably more aggressive about making drug arrests.  Wisconsin also made more possession arrests for other drugs than did Minnesota, but the gap was much less pronounced (4,807 to 3,737), while Minnesota actually outstripped Wisconsin by a considerable margin when it came to arrests for drug trafficking (6,382 to 4,832).  So, it is not as if our neighbors to the west have declared a general truce in the War on Drugs, while we have doggedly fought on.  Rather, there seems something specific about marijuana possession that is differentiating the two states.

It seems unlikely that differences in marijuana use could account for such a large difference in the arrest rates.  Indeed, based on the National Survey of Drug Use and Health, it appears that marijuana use in Minnesota is, if anything, slightly higher than in Wisconsin.  So, the differences in arrest rates probably result to a significant degree from differences in police behavior.  What drives those differences is not immediately apparent from any data that I have seen.

As I have observed in earlier posts, differences in criminal-justice outputs between the two states cry out for justification because the two states are so similar in population size and crime rate.   (more…)

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Should Police Be Required to Equalize Arrest Rates in Poor and Middle-Class Neighborhoods?

Tuesday, March 13th, 2012

When police choose to arrest a resident of a particular neighborhood for committing a crime in that neighborhood, the decision produces certain costs and benefits for the neighborhood.  And when police concentrate resources in certain neighborhoods, or adopt different enforcement strategies in different parts of a city, the costs and benefits of arrests will be distributed unequally among neighborhoods.  Such distributional consequences of policing strategy are the subject of an interesting new article by Nirej Sekhon, “Redistributive Policing,” 101 J. Crim. L. & Criminology 1171 (2011).

It seems self-evident that policing strategies should not be regressive, that is, exacerbate preexisting socioeconomic disparities among neighborhoods.  Rather, the ideal should be to distribute the benefits and burdens of arrests evenly across neighborhoods.  The problem, of course, is that crime rates are not distributed evenly.

Sekhon’s solution is to tie neighborhood arrest rates to neighborhood crime rates:

The obligation to distribute policing costs equitably ought to require police departments to make arrests in proportion to the rate of specific criminal misconduct in specific areas. Police departments should not arrest offenders in one community while allowing those in another community to engage in similar conduct with impunity.  (1220)

This might have a large impact on drug enforcement, for instance.  Since the rates of drug use appear no less among well-off whites than among poor minorities, Sekhon’s approach would seem to require police to intensify enforcement in middle-class neighborhoods, deescalate enforcement in poor neighborhoods, or both.

(more…)

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New Report Shows Big Increase in Arrests for Simple Possession Since 1980

Saturday, September 24th, 2011

Last week, the Bureau of Justice Statistics released an interesting new report, Arrest in the United States, 1980-2009.  I was particularly interested in the data on arrests for simple drug possession or use, which accounted for about ten percent of all arrests in 2009.  This seems a little high (so to speak), especially in comparison to where we were three decades ago with drug arrests.  Between 1980 and 2009, the number of possession/use arrests more than doubled from 200 per 100,000 people to about 450 per 100,000.  The 2009 number actually represents a downturn from a thirty-year high in 2006 (more than 500 per 100,000).

The arrest rates for simple possession and trafficking have not moved in sync, suggesting shifting patterns of enforcement in the War on Drugs.   (more…)

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Florida “Strict-Liability” Drug Law Found Unconstitutional

Friday, July 29th, 2011

Are there any constitutional limits on the power of a legislature to restructure state-of-mind elements as affirmative defenses? The Supreme Court has suggested that such limits do exist, but has not clearly delineated what they are. However, an interesting habeas case now moving through the lower federal courts may provide a good opportunity to clarify this uncertain area of the law.

The case has emerged from a tug-of-war between the Florida legislature and the courts over the state’s basic drug-trafficking offense. Although the offense did not include any express state-of-mind element, the Florida Supreme Court held as a matter of statutory construction in 1996 that the state was required to prove knowledge of the illicit nature of the substance involved in the offense. The legislature responded in 2002 by amending the statute and clearly indicating that knowledge was not required; rather, the legislature specified, lack of knowledge must be proved by the defendant as an affirmative defense. (Apparently, only one other state, Washington, similarly dispenses with a state-of-mind element for drug trafficking.) Now, a federal district court has ruled on a habeas petition by a defendant convicted under the Florida statute, holding in Shelton v. Secretary, Department of Corrections (No. 6:07-cv-839-Orl-35-KRS) that the new version of the offense facially violates the Due Process Clause.

I’m sympathetic to the result, but the court’s reasoning strikes me as a stretch.

(more…)

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Which Parolees Are the Biggest Risks? The Answer May Surprise You

Wednesday, July 20th, 2011

There is a natural tendency to believe that the offenders who have committed the most serious crimes are the most dangerous.  We assume that the commission of a heinous crime reveals intrinsic character flaws that will inevitably manifest themselves in future offenses.  But is this true?  Empirical research casts doubt on the assumption.  For instance, the well-known study by the Bureau of Justice Statistics on recidivism among prisoners released in 1994 found lower rearrest rates among violent offenders than property offenders (61.7 percent versus 73.8 percent), with homicide offenders having the lowest rearrest rates among all of the categories studied (40.7 percent).

A new study of parole violations by Ryken Grattet, Jeffrey Lin, and Joan Petersilia reaches a similar conclusion.  Their dataset included the records of more than 250,000 parolees in California in 2003 and 2004.  Here is what they found regarding the effect of offense category:

The commitment offense variables indicate that parolees who had last been incarcerated for property offenses pose the greatest risk to violate, followed by parolees committed for drug (the omitted category), violent, and sexual offenses. Parolees committed to prison for violent offenses have a 19.1 percent lower hazard of violation than drug offenders, and parolees committed for sexual offenses have a one-third lower risk than drug offenders.  Individuals with greater numbers of prior violent convictions also have a lower hazard of violation. For each additional violent conviction, a parolee has a 2.0 percent lower hazard of violation. The number of serious convictions also lowers the hazard of violation by 3.4 percent per prior serious offense. . . .

[P]olicy makers and the public, who often assume that the seriousness of a parolee’s past behavior is positively correlated with risk, might be surprised to learn that markers of the seriousness of the offender’s criminal history actually lower the risk of violation. In other words, the type of crime a parolee has been convicted of is indeed predictive of future bad behavior; however, it is drug and property—so-called low-level offenders—that pose heightened risks of violations.  (385-87)

What is new and particularly helpful about this study is that it attempted to hold supervision intensity constant. 

(more…)

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More Drug-Court Skepticism

Monday, June 27th, 2011

I see that the Justice Policy Institute and the Drug Policy Alliance have both recently issued reports voicing skepticism of drug treatment courts. Despite the widespread popularity and phenomenal growth of drug treatment courts, I’ve long had my doubts. (See this article, for instance.) Contrary to the beliefs of many well-intentioned supporters, they do not necessarily lead to reduced incarceration for drug users and likely reinforce the view – regrettable, in my opinion – that drug use is invariably an appropriate matter for regulation through the court system.

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SCOTUS to Rule on Meaning of “Cocaine Base”

Tuesday, October 12th, 2010

In a 1986 law that must surely rate as one of Congress’s most ill-informed overreactions to a high-profile tragedy– the cocaine-related death of college basketball star Len Bias — a new mandatory minimum ten-year sentence was created for drug offenders involved in dealing 50 or more grams of “cocaine base.”  Never mind that Bias used the powder form of cocaine.  Never mind that crack — the form of cocaine that everyone was really concerned about at the time — is only one type of cocaine base.  Congress instead chose to direct the harsh new penalties at cocaine base, a category that is narrower than all cocaine, but broader than just crack (at least if the term “cocaine base” is understood literally).  As is now well known, the result of this unfortunate law has been to create massive racial disparities in federal drug sentencing between white defendants (who are typically involved with powder) and black defendants (who are more typically involved with crack). 

Although “cocaine base” cases normally involve what is undisputably crack, defendants have from time to time litigated whether a particular susbtance really triggers the ten-year minimum.  These cases have produced a longstanding circuit split, with six circuits (the First, Second, Third, Fourth, Fifth, and Tenth) reading “cocaine base” to encompass all forms cocaine that are chemically classified as a base, and five circuits holding that “cocaine base” means more narrowly what Congress was really concerned about, i.e., crack and other types of smokable cocaine base.  With today’s cert. grant in DePierre v. United States, 599 U.S. 25 (1st Cir. 2010), the Supreme Court appears poised finally to resolve the issue.  (more…)

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