Since Congress recognized the gaping racial disparity between mandatory minimum sentences for crack offenses and cocaine offenses and reduced the ratio from 100-to-1 to 18-to-1, courts have grappled with when and how to apply the statute to already-decided cases. Last year, the U.S. Supreme Court ruled that the reductions in the Fair Sentencing Act applied to at least those cases decided before the law was passed, but not yet sentenced. But questions remain about whether the statute applies retroactively to tens of thousands of other inmates who might seek reduced sentences.

On Friday, a federal appeals court panel issued a sweeping decision that held the reduced sentencing ratio should apply retroactively to all cases, not just because that was the intent of the 2010 Fair Sentencing Act, but because failure to do so would be unconstitutional. In a powerful statement about the troubling history of drug sentencing, Sixth Circuit Judges Gilbert Merritt and Boyce Martin write:

The old 100-to-1 crack cocaine ratio has led to the mass incarceration of thousands of nonviolent prisoners under a law widely acknowledged as racially discriminatory. There were approximately 30,000 federal prisoners (about 15 percent of all federal prisoners) serving crack cocaine sentences in 2011. Thousands of these prisoners are incarcerated for life or for 20, 10, or 5 years under mandatory minimum crack cocaine sentences imposed prior to the passage of the Fair Sentencing Act. More than 80 percent of federal prisoners serving crack cocaine sentences are black. In fiscal year 2010, before the passage of the Fair Sentencing Act, almost 4,000 defendants, mainly black, received mandatory minimum sentences for crack cocaine. […]

The Fair Sentencing Act was a step forward, but it did not finish the job. The racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act. If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional. The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

The two-judge majority opinion also suggests the court would be inclined to strike down other deeply discriminatory and draconian sentencing laws for nonviolent drug offenders, which even the Congressional Research Service has flagged as a cause of the United States’ overwhelming prison population. Unfortunately, the dissenting Judge Ronald Lee Gilman’s opinion may better reflect the view of either a full Sixth Circuit panel or the Supreme Court justices who would review this case on appeal. Gilman puts the onus on Congress to make its law explicitly retroactive, and points to the failure of pre-Fair Sentencing Act constitutional challenges to the crack-cocaine sentencing disparity.

The Illinois legislature sent a medical marijuana bill to Gov. Pat Quinn Friday, after the Senate passed a measure 35-21 largely along party lines. The measure would permit marijuana use with a doctor’s prescription for 33 specified ailments, require users, growers, and dispensaries to undergo fingerprinting and criminal background checks, and limit the number of growers and dispensaries.

The news comes as several new studies are released suggesting that marijuana may aid in post-traumatic stress disorder, Crohn’s disease, diabetes, and as a possible weight control remedy. All of these studies, however, were either performed in other countries or based on surveys or self-reporting from marijuana users, because federal agencies have blocked access to a legal supply of marijuana even for academic studies.

Earlier this month, Gov. Martin O’Malley (D) signed Maryland’s much more limited marijuana law, which provides narrow access to medical marijuana for research purposes. If the bill is signed into law, Illinois would become the 20th state with a medical marijuana law, in addition to the District of Columbia. Gov. Quinn has said he is “open-minded” about the measure.

Several exonerated men whose innocence of murder was proven years after they were sentenced to death are imploring Gov. Rick Scott (R-FL) not to sign a Florida bill that would set automatic timelines for imposing the death penalty, and likely would have resulted in the execution of these and other innocent people.

The bill, known as the “Timely Justice Act,” was passed last month amid legislator sentiments that “timely justice” is more important than “guilt or innocence,” with one legislator saying, “Only God can judge. But we can sure set up the meeting.”

Now, as the deadline approaches for Gov. Scott to sign the bill, former inmates who escaped the death penalty are coming forward to demonstrate the extraordinary costs of the law’s passage, in a state with the highest number of exonerations, and more people on death row than any state but California.

“If Governor Scott would just sit with me and others like me, I know he will veto this bill that, if it had been law, would have ended my life – I am innocent,” said Seth Penalver, who sat on death row for 18 years before exonerating evidence emerged. “If he signs this bill into law, I fear other people who are innocent like me, will be unjustly executed by the State of Florida.”

Exoneree Juan Melendez wrote in the Huffington Post:

The “Timely Justice Act” would speed up a system we know has already sent innocent men, like myself, to death row. Some of these prisoners may be men like me, who have exhausted their legal appeals, yet keep trying to find a way to prove their innocence.

In multiple cases of current death row prisoners, we don’t know exactly what the legal claims are. Some of the men on Florida’s death row ran out of legal options simply because their attorneys missed filing deadlines.

In those instances, no court had the opportunity to evaluate the claims and determine whether they have merit. How can we possibly justify speeding up the execution of prisoners in those cases?

According to logic of the “Timely Justice Act,” any prisoner who has exhausted his appeals and been through a clemency process has had every opportunity and is ready for an execution date, regardless of the specific questions and issues that surround his case.

I am living proof that each case is unique and that the system must allow ample time for the truth to emerge.
Given Florida’s troubling track record on wrongful convictions, this legislation ensures the unthinkable — the execution of an innocent person.

Although the final version of the bill eliminated timelines for filing appeals and post-conviction motions, it would require the governor to issue an execution warrant to those who have exhausted their legal remedies within 30 days, and require execution within 180 days of the warrant. The problem is that when it comes to the death penalty, cases are reopened years later when new evidence finally emerges or defendants obtain the resources to uncover new evidence. In several recent instances, crucial errors in FBI analysis were not revealed until years after hundreds of individuals’ cases had been completed and decided.

Just this week in Florida, a man who was sentenced to death in 2006 is just now requesting a retrial, after he obtained lawyers in 2011 that secured testing of crucial DNA evidence.

During a Wednesday House oversight hearing with Attorney General Eric Holder that overwhelmingly focused on the invasive government search of Associated Press phone logs and the IRS, one House member took the opportunity to grill Holder on another Department of Justice issue that has provoked criticism from the left. Rep. Steve Cohen (D-TN) tore into Holder over his approach to marijuana, asking why his Justice Department is “continuing to put people in jail,” even as polling shows a majority of Americans believe the plant should not be illegal:

One of the greatest threats to liberty has been the government taking people’s liberty for things that people are in favor of. The Pew Research Group shows that 52 percent of people do not think marijuana should be illegal. And yet there are people in jail, and your Justice Department is continuing to put people in jail, for sale, and use, on occasion, of marijuana. That’s something the American public has finally caught up with. It was a cultural lag. And it’s been an injustice for 40 years in this country to take people’s liberty for something that was similar to alcohol. You have continued what is allowing the Mexican cartels power, and the power to make money, ruin Mexico, hurt our country by having a Prohibition in the late 20th and 21st century. We saw it didn’t work in this country in the 20s. We remedied it. This is the time to remedy this Prohibition, and I would hope you would do so.

WATCH IT:

In addition to the majority support for decriminalizing marijuana cited by Cohen, an even greater proportion of Americans say they think the United States is losing the so-called “War on Drugs” and that states should be allowed to decide whether marijuana is legal.

Holder said shortly after two states passed ballot initiatives to legalize and regulate recreational marijuana that he would announce a DOJ policy on a federal response. But six months later, his only answer has been that he expects an announcement “relatively soon.” Regional federal officials, meanwhile, have re-upped crackdowns on medical marijuana dispensaries, sending threat letters to dispensaries in several cities in Washington and California. And what started as a Drug Enforcement Administration crackdown has now developed into new DOJ action by regional U.S. attorneys. Just this month, U.S. Attorney Melinda Haag filed federal forfeiture actions to seize the real estate that houses two Bay Area medical marijuana dispensaries seemingly in compliance with state and local laws, including the largest dispensary in Berkeley and another dispensary that serves the Mission region of San Francisco. Haag has filed a similar action against the largest U.S. dispensary with locations in Oakland and San Jose, suggesting a strategy to hamper the industry by targeting the largest players.

Members of Congress have introduced several bills to square state laws with the federal marijuana prohibition.

Montez Spradley (Credit: AL.com)

In 2008, Montez Spradley was convicted for the murder of a grandmother shot dead in Center Point, Alabama. Although the jury recommended a sentence of life in prison without parole, an Alabama trial judge rejected the recommendation and sentenced Spradley to death. But that death sentence was struck down along with the conviction, when an appeals panel deemed the trial so error- and bias-ridden that it was a “miscarriage of justice.”

Now, as Spradley’s case enters the early stages of retrial, the ACLU has uncovered even more potentially damning evidence about prosecutors’ handling of his case, revealing yet another way in which commonplace prosecutor misconduct can lead to improper sentences to death. Spradley’s ex-girlfriend testified this week that she was offered a $10,000 reward in exchange for testifying against Spradley, and that prosecutors threatened to take away her children and prosecute her for perjury if she did not do so. AL.com reports:

At the court hearing today Alisha Booker testified that she lied at the 2008 trial that Spradley had confessed to her in a church about killing Jason.

Booker testified that after having denied any knowledge of the murder to police in 2004, she stepped forward later to tell police that Spradley had admitted it because she was mad at him. She said that at the time she stepped forward she was pregnant with her and Spradley’s third child. She said she learned he was cheating on her.

“I just felt he was doing me wrong at the moment,” Booker said.

As she began to testify that she had lied in her 2008 testimony, Wallace asked her if she knew that she could possibly be charged with perjury. After meeting in the judge’s office with her attorney for a few minutes she returned to the stand and continued her testimony. [...]

Booker said she had told law enforcement that she had lied and didn’t want to testify. She said they told her it was too late and that she had to stick to the story or she could go to jail for a long time and her kids put in foster homes. She said the detectives had told her she was a single mother and should take the reward money.

A prosecutor and the lead detective in the homicide case denied the allegations during today’s hearing.

The rewards offered to Booker were part of two local programs to incentivize witnesses to come forward with information about the crime. These rewards programs can be a helpful crime-fighting resource, when used properly. But they also create perverse incentives to provide false information, particularly when a witness merely provides testimony that is not corroborated by others or accompanied by physical evidence. Because prosecutors maintain primary control over access to this and other crucial information about a case, they are constitutionally required to divulge to defendants the existence of such a reward, or of any other exculpatory evidence, even though it may undercut prosecutors’ case. In this case, prosecutors dispute many facts, but they do not dispute that Booker was given a reward, nor that they failed to disclose that reward.

The under-appreciated U.S. Supreme Court decision that articulated this prosecutor obligation celebrated its 50th anniversary this week, but punishment for prosecutors who fail to comply with Brady v. Maryland remains largely non-existent, meaning those inclined to withhold evidence are still unlikely to be deterred by the law, and perhaps even less likely to be discovered.  This is one of several cases to reveal these blatant Brady violations even in instances where a defendant’s life is at stake, and in which judges subject to the politics of re-election use a dangerous Alabama policy to “override” jury decisions about the death penalty. And while Spradley earned a retrial, another judge exercising judicial override could once again sentence him to death.

Jeffrey Skilling

Even when Jeffrey Skilling was first sentenced for conspiring in one of the largest corporate fraud schemes in modern history, he received less jail time than some low-level drug offenders sentenced to harsh mandatory minimums. But this week, Skilling reached a deal with the Department of Justice to cut his 24-year sentence to as little as 14 years, in exchange for abandoning the onslaught of appeals he has launched at his own expense. Reuters reports:

The agreement … could result in Skilling’s freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling’s conviction but found the original sentence too harsh.

Once ranked seventh on the Fortune 500 list of large U.S. companies, Enron went bankrupt on December 2, 2001 in an accounting scandal that remains one of the largest and most infamous U.S. corporate meltdowns.

Thousands of workers lost their jobs and retirement savings, and images were beamed around the globe of staff carrying possessions out of Enron’s downtown Houston office tower, past the company’s “crooked E” logo.

Even in 2006, when Skilling was first sentenced, his legal defense was deemed one of the most expensive in history at $65 million, and in the years since he has taken his case to the Supreme Court and back on appeal after appeal. By settling, the Department of Justice not only saved itself the considerable expense of continuing this legal battle; it also gets access to the more than $40 million in seized assets Skilling had previously not agreed to surrender. As a consequence of these negotiations, Skilling’s sentence is even more disparate from the 25-year-plus sentences of drug defendants charged for low-level offenses like selling their own pain pills to an undercover informant.

If Skilling’s reduced sentence is approved by a judge during his June hearing, as is likely, Skilling will nonetheless not have had an ideal run with the criminal justice system. His lawyers made a persuasive argument that the statute initially used to convict him was overly broad. And his sentence was disproportionately high relative to alleged Enron scandal mastermind Andrew Fastow, who got only six years in prison after he testified against both Skilling and Enron Chairman Kenneth Lay. But more severe versions of these problems plague countless criminal defendants, who, rather than having the leverage to shorten their sentence or the legal resources to take down a statute, are coerced into plea deals under threat of draconian prison terms.

A major U.S. private prison operator known for inmate abuse, violations, and disregard for the truth reported a 56-percent spike in profit in the first quarter of 2013, due in part to its new strategy for drastically reducing its taxes, the Associated Press reports. During a conference call touting its success, representatives at GEO Group boasted that the company continues to have “solid occupancy rates in mid to high 90s” and that they are optimistic “regarding the outlook for the industry,” in part due to a “growing offender population.” GEO Senior Vice President John Hurley assured investors during the call:

We have a longstanding partnership with the Federal Bureau of Prisons, the United States Marshal Service and US Immigration and Customs Enforcement or ICE. … We continue to see meaningful opportunities for us to partner with all three of these federal agencies, notwithstanding the various issues with the federal budget, which we believe will have no material negative impact on our business. The federal bureau of prisons continues to face capacity constraints coupled with a growing offender population.

The federal prison population has swelled 790 percent since 1980, in large part due to draconian drug and immigration laws. And the United States maintains the title of the world’s number one jailer. Private prison operators nonetheless remain enthusiastic about the prospects of high incarceration rates for business. Representatives on this call shied away from the strong language fellow prison firm Corrections Corporation of America used during its investor call in February, when CEO Damon Hininger assured a strong “continued demand for beds” even after immigration reform. GEO executives explained that they are now taking the position that “discussing our approach and strategies about any particular procurement is really not in the best interest of our company or our shareholders.”

Following a trend of corporations achieving dramatic tax reductions by becoming a real estate investment trust (REIT) – a mechanism historically reserved for firms holding real estate as an investment — both GEO and fellow prison operator Corrections Corporation of America successfully persuaded the Internal Revenue Service recently that they are essentially holding real estate, analogizing prisoners to renters paid for by the government. In reality, the job of running a prison is only nominally about the facility where it’s housed, and primarily about ensuring humane prisoner treatment, inmate rehabilitation, and public safety. But private prison corporations charging “rent” to house prisoners make no more or less money depending on whether they achieve these goals, particularly not when immense political spending to lobby for incarceration and privatization outweighs the public pressure from widely reported abuses at private facilities.

Earlier this week, a Mississippi man escaped death by just a few hours when the state Supreme Court agreed to block his execution, scheduled for that Tuesday evening. Although hair sample evidence was available for testing, and Willie Manning’s conviction had hinged on unreliable jailhouse informant testimony, the court had just a week earlier refused to order DNA testing, and was prepared to allow the execution to go forward. It was only after the FBI revealed that its own analysis of key evidence was unscientific and invalid just days before Manning’s conviction that a court agreed, without comment, to block his execution.

Now, in another murder case involving similar FBI error, a man who spent 32 years in prison for a Maryland murder has been granted a new trial after DNA testing performed in March discredited key FBI statements that linked him to hair samples at the crime scene, and refuted statements about the origins of both the bullets and the gun used at the crime scene. The Washington Post reports:

The genetic testing contradicted testimony by an agent with the FBI Laboratory who said that he found [John Norman] Huffington’s hair in the bed where one victim was killed, claiming an accuracy rate of 99.98 percent.

“Due to the substantial weight given to the microscopic hair analysis by the jury . . . as well as the results of the DNA test . . . there is a significant possibility that the outcome of Petitioner’s case may have been different,” Dwyer wrote in a May 1 order that Huffington’s lawyers received Wednesday. […]

Huffington’s case was among those featured in a series of articles last year in The Washington Post, which reported that government officials knew for years that flawed forensic testimony and false hair matches may have led to hundreds of wrongful convictions. […]

Huffington’s lawyers said they did not know of specific problems with the FBI hair examination until informed by The Post that in July 1997, [Prosecutor] Cassilly considered and then rejected having the FBI review the case because the hair expert involved, FBI Special Agent Michael P. Malone, had been discredited.

Huffington was initially sentenced to death, before an appeals court lowered the punishment to two life sentences. The conviction hinged on both the FBI’s flawed data and the testimony of Huffington’s friend that he said he intended to use his gun to commit the crime. Huffington says he went home before the violent shooting and stabbing occurred.

Huffington’s case is one of potentially hundreds of cases in which prosecutors relied upon flawed evidence, according to a 2012 Washington Post investigation. Even in those cases in which the Department of Justice had already determined the FBI analysis was flawed, it only disclosed that fact to the defendants in 30 of 137 cases. Following the Washington Post report, the DOJ expanded the scope of its review to thousands of FBI analyses, and revealed the critically flawed evidence in Manning’s and Huffington’s cases. Only after the DOJ’s review did the FBI commit to testing Huffington’s DNA evidence. It is still unknown whether Manning’s DNA evidence will be tested.
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The number of stop-and-frisks performed by the New York Police Department dropped in the first three months of 2013, and so did the city’s crime rate, according to new data from the New York City Council. The statistics come as the NYPD’s aggressive use of stop-and-frisk is under review in a major lawsuit challenging the practice’s constitutionality. Plaintiffs allege an expansive and racist use of police stops has been applied without legal justification, subjecting vast swaths of the city’s young African American and Hispanic men to invasive frisks, unwarranted searches, and detention at police centers for alleged minor crimes, often marijuana possession.

The latest statistics represent a continued slow decline in stops since the practice has come under fire, but the stops continue to have a severe disproportionate effect on minorities. The Wall Street Journal reports:

The number of stop-and-frisk reports filed by New York City police fell 51% in the first three months of this year compared with the same period last year. […]

From Jan. 1 through March 31, officers conducted 99,788 stop and frisks, compared with 203,500 during the same period in 2012, according to New York Police Department data. It wasn’t clear how many of those encounters resulted in a subject being frisked after a stop.

They also showed that the reduced stops in the first quarter of 2013 resulted in a 43% decline in weapons recovered compared with the same period in 2012.

Overall crime is also down 2.7% this year through April 28 with murders leading the way with a 30% decline compared with the same period last year, police data show. […]

Data from the first quarter of this year has been consistent with previous years: Black and Hispanic people accounted for the vast majority of stops.

African-Americans were the subjects of 56% of the stops and were 65% of the violent-crime suspects identified by alleged victims, according to the NYPD data. Hispanics were the subjects of 30% of stops and were 27% of violent-crime suspects.

Officers testifying during the weeks-long trial on the policy have revealed that they were told to target young, black men, and expected to meet monthly quotas for stop-and-frisks and arrests.

Police argue that the stop-and-frisk policy is necessary to ensure public safety. But the New York Civil Liberties Union is pointing out that the drop in crime — particularly murder – weighs heavily against the argument that more frivolous stops means more safety. Last month, Mayor Michael Bloomberg (I-NY) blasted the NYCLU for its advocacy to reform stop-and-frisks, calling the civil rights group “extremists” akin to the NRA.

(HT: Capital)

Hours before a Colorado Senate deadline, marijuana legalization opponents introduced a measure to repeal the newly passed ballot initiative to regulate marijuana like alcohol. The bill’s introduction Monday evening, after having become public just a few days earlier, prompted immediate reaction from the marijuana legalization community, and at 10 p.m., the bill’s sponsors backed down and took the bill off the table in the face of a filibuster threat and defeat in the House. From the Associated Press:

The last-minute maneuver infuriated marijuana legalization supporters, some of whom ran up several flights of stairs to testify against the measure when they got word it would be heard.

“You’re subverting the will of the voters,” argued Joe Megysy, spokesman for the Marijuana Policy Project, a major backer of last year’s pot measure.

Even House colleagues seemed taken aback by the late-night maneuver to ask voters again whether retail pot sales should be allowed.

“This has caught all of us a bit off guard,” said Rep. Dan Pabon, sponsor of a marijuana regulation measure in the House. He said the chances of the repeal measure getting the necessary two-thirds margin in House were “.001.”

The bill would have linked repeal to a tax measure that will go before the Colorado legislature this fall. If voters did not approve certain taxes on marijuana, then the repeal would go into effect. The sponsors said its intent was to pressure the marijuana industry to support the taxes, but it also would have pressured voters to choose between accepting taxes they might not support, or lose the ballot initiative they had previously supported. The ballot initiative garnered more votes than President Obama in November.

As the Colorado legislature completed its session, it also considered several other bills related to marijuana regulation. Although several were left in limbo, the legislature did pass a key measure that has failed numerous other times to set driving under the influence limits of 5 nanograms per milliliter. Gov. John Hickenlooper (D) has said he supports the measure. The House also passed a bipartisan resolution asking for direction from the federal government on how to proceed with regulating pot. Attorney General Eric Holder has still not announced any federal policy on the two state laws to legalize recreational marijuana.