Mimesis Law
23 April 2019

Trying To Right A Wrong: Drugs-Minus-Two

Apr. 20, 2016 (Mimesis Law) — I am no fan of Bill Clinton. He depressed me beyond description when he soiled himself and the Presidency with a woman in a blue dress. I am sure there is a mental health diagnosis for a lawyer and a politician who has unbelievable talent but risks everything for phone sex (whatever the hell that is). But that is not what this post is really about.

Ignoramuses have attacked Clinton, and his equally talented lawyer-wife, for the draconian federal sentencing statutes and Guidelines that came into being in the 1990s. Context doesn’t matter to them. I despise those groups for their willful blindness. But, that too is not what this post is really about.

Years ago, Mrs. Clinton was factually correct to say that there were (and I believe still are) “super-predators”* in our communities. Thank the Gods that those bastards were (and I believe still should be) put away for long, very long, periods of time. More than few of them caused drug addicted crack whores to kill themselves. See Exhibit A as an example.

But, it is also true that too many people, and particularly blacks, were swept up in the figurative vortex of the “tough on crime” mantra. See Exhibit B as an example. Indeed, the notion of “super-predators” would so enrage the populace, including especially white guys like me, that horrible injustices were committed against young men of color all in the name of public safety.**

What this post is really about are the efforts of good people to correct the excesses of the bygone era when crime dropped like a rock but federal prison populations took off like a rocket. The Drugs-Minus-Two retroactive sentence reduction Amendment 782 to the Sentencing Guidelines went into effect in 2014. It has been hugely successful in reducing draconian sentences.*** As of March 25, 2016, federal district courts have reduced sentences for more than 26,000 inmates convicted of trafficking crack and powder cocaine, heroin, marijuana, methamphetamine, and other drugs. See U.S. Sentencing Commission 2014 Drug Guidelines Amendment Retroactivity Data Report (April, 2016).

Because of the Drugs-Minus-Two Amendment, the federal courts, and, most particularly truly dedicated federal probation officers, fair-minded prosecutors and zealous defense lawyers, have been working very hard to make amends for the draconian sentences of yesteryear. Here are the numbers:

Total filed:               38,242
Total granted:         26,850
Percent granted:     70.2
Total denied:           11,392
Percent denied:      29.8****

Here is a breakdown of the drugs relative to sentence reductions:

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As shown above reductions for methamphetamine outstripped other drugs. That was even true for crack cocaine. I’m not at all surprised. We have had so many meth cases that I could try one in my sleep. (Some say I have.)

The demographics are fascinating as well. Look particularly at the following table for the relationship between race/ethnicity, specific drugs and those who received sentence reductions.

White folk (probably with very bad teeth) (46.2%) and Hispanics (46.6%) were involved with far more meth than blacks. But black folks (87.3%) were involved far more than any other demographic with crack. Hispanics knocked it out of the park for powder cocaine (56.4%).

Overall, men received most of the reductions and that makes sense as men commit drug crimes far more often than women. Citizens comprised the great bulk of those who received sentence reductions, but non-citizens were significantly represented as well. The average age of those receiving sentence reductions was 35—just about the time that many offenders begin to “age out” of crime.

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Nationally, and considering the denial of a sentence reduction motions, 35.8% of those offenders who were denied relief had the highest criminal history category of VI. Of the denials for crack cocaine, 57.2% of those fell in criminal history category VI, 22.8% had weapons specific offense characteristics, and 15.5% confronted the mandatory minimum for firearms.

In the District of Nebraska, I can attest to the fact that probation officers, prosecutors, defense lawyers and judges have been working diligently and cooperatively to see to it that the Drugs-Minus-Two Amendment was fully implemented as fast as possible. We considered 756 applications. That was the 15th largest number of applications in the nation. We granted far more reductions (554) than any other court in the Eighth Circuit. Our average reduction was 16.7%. Average sentences were reduced by 23 months. Thus, the average sentence went down from 138 to 115 months.

Let me sum up. We deserve no kudos for trying, at least in part, to right a wrong. Indeed, the “fact that good people can be forced to do wrong doesn’t make them less good. But it also doesn’t make the wrong less wrong.” Ovadya ben Malka and Yael Shahar, A Damaged Mirror: A story of memory and redemption, Kasva Press (2014). But there should be a special place in hell for those that ridicule context and ignore or deny concrete and concerted efforts to make amends.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*Incidentally, “super-predators” come in all races and ethnicities. But it also true that one black guy stands out for me. See United States v. Johnson, 169 F. 3d 1092 (8th Cir. 1999) (affirming life sentence of self-described “gentle drug dealer”; reciting, among other horrors, the following: “Howard was one key prosecution witness. She testified that during 1995 and 1996 she sold crack for Johnson and that during 1996 he came to her house at least twice to package and sell crack. She also testified that Johnson and his brother Jerry had physically and sexually assaulted her because of a cocaine debt. She stated that Jerry Johnson found her hiding in the closet of a friend’s house, hit her, and forced her into an automobile. He told her that she would have to get the money she owed his brother and forced her to have sex with him, then sodomized her with transmission fluid. He called Johnson for further directions and drove her to York, Nebraska where she was placed in Johnson’s automobile and forced to perform oral sex on him. Howard said Johnson then threatened that she would be ‘found in a river’ if she did not get the money to him by 11:00 that morning.”)

**Another way of expressing the “super-predator” notion was to use the word “wildings.” The Central Park jogger case allegedly involved just such a group and concerned the assault, rape, and sodomy of Trisha Meili, a female jogger, and attacks on others in New York City’s Central Park, on April 19, 1989. The attack on the white female jogger left her in a coma for 12 days and with no recollection of the event when she came out of the coma. Meili was a 28-year-old investment banker at the time. Five juvenile males—four black and one of Hispanic descent—were tried, variously, for assault, robbery, riot, rape, sexual abuse, and attempted murder. They were convicted of most charges by juries in two separate trials in 1990, and received sentences ranging from five to 15 years. Four of the convictions were appealed; they were affirmed by appellate courts. The defendants spent between six and 13 years in prison. In 2002, Matias Reyes, a Hispanic male who had been a juvenile at the time of the attack, confessed to raping the jogger, and DNA evidence confirmed his involvement in Meili’s rape. He also said he committed the rape alone. Reyes at the time of his confession was a convicted serial rapist and murderer, serving a life sentence. The convictions of the five kids (by then men) were vacated. After that, New York City paid $41 million to settle the civil suit brought by the five. For an award winning documentary, told from the perspective of the defendants, see Ken Burns, Sarah Burns and David McMahon, The Central Park Five (2012).

***For those who received a reduction, they could not be released any earlier than November 1, 2015. This delay was necessary because U.S. Probation officers needed time to prepare for the huge influx of offenders who would get out of prison but still be required to serve supervised release terms.

****The most cited reason for denial was because the offender fell under the Career Offender or Armed Career Criminal provisions. Thus, 2,575 such persons were denied relief and that amounted to 21.0% of all denials.

10 Comments on this post.

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  • Chris
    20 April 2016 at 9:42 am - Reply

    Said ignoramuses occupy their “safe spaces” in academia and have no special insight or knowledge to offer policy makers, other than their shouting and chanting. You can’t argue with the numbers, tough on crime worked. Now we can add “smart” to our tough on crime approach and correct where we over-corrected in the past.

    • Richard G. Kopf
      20 April 2016 at 2:13 pm - Reply

      Chris,

      Amen (and I’m an agnostic or maybe even an atheist).

      All the best.

      RGK

  • Anon
    20 April 2016 at 3:34 pm - Reply

    I agree with your sentiments, but I must confess that I get very nervous every time I see a picture of President Clinton waving that finger of his whenever he’s trying to make a point.

    • Richard G. Kopf
      20 April 2016 at 6:34 pm - Reply

      Anon.,

      The last several days have been nasty, nasty, nasty, nasty, and nasty.* You made me laugh out loud. I owe you!

      All the best.

      Rich Kopf

      *I haven’t even been able to sentence anyone to a long prison term.

  • TMM
    21 April 2016 at 11:47 am - Reply

    My problem with most of the criticisms of the 1980s and 1990s federal criminal and sentencing “reform” statutes is that those criticisms mix apples and oranges. Some of the “reforms” unreasonably increased the penalty for some “minor” offenses, and criticisms of statutes that created high mandatory minimums for street level drug dealers is probably justified. Criticisms of provisions that increased the penalty for violent offenses and career criminals and encouraged states to adopt “truth-in-sentencing” laws seem to me to be misplaced. I know that, in my state, when the prosecutors and defense bar got together to rewrite the criminal code, there was substantial consensus to ease back a little on the drug offenses while bumping up the penalties for assaults and lesser homicides.

    • Richard G. Kopf
      21 April 2016 at 1:16 pm - Reply

      TMM,

      Truth in sentencing, that is sentencing someone for what they actually did, and, in the federal system, making sentences real–that is a ten-year sentence is ten years (except for earned “good time” of 54 days a year) are solid reforms. I also think that long sentences for kilo quantities of dope make sense. But, we fried far too many little fish under the conspiracy rubric.

      Thanks for your thoughtful comment. All the best.

      RGK

      • Law Student
        23 April 2016 at 7:43 pm - Reply

        Judge Kopf,

        Don’t you think that many of those small fish are what make the king pins the kilo carriers?

        I think we can all agree that if I am selling bags of whatever and I am purchasing that from source A (a kingpin), I am getting that from a kingpin who is moving kilos. If I am charged as a part of a conspiracy, then no matter where I am in the chain, its very easy to find the quantity was foreseeable to me or I am responsible (just as responsible) for all acts of the conspiracy/co-conspirators.

        It works the same way in most criminal offences, right? Fraud – same. I answer phones as a secretary as a part of a fraud scheme. My boss is a ponzi schemer. Voila, Indictment, conspiracy to commit whatever, I plead. I may have been a mule and been paid nothing more than an average salary, but I am now responsible for the millions of dollars that my ponzi schemer boss ripped off.

        Isn’t the problem better addressed through reform the concepts of foreseeability and related issues when charged/convicted of conspiracy?

        It seems to me that the problem would be better addressed by focusing reforms at the front end rather than trying to clean it up after-the-fact, which is still laudable but it never should have gotten to this point in the first place. Your thoughts would be appreciated.

        • Richard G. Kopf
          24 April 2016 at 8:34 am - Reply

          Law Student,

          Brilliant question!

          I have tried to address the problem with a “buyer and seller” instruction in conspiracy cases. I crafted it myself and not from any model.

          It basically says that if the only relationship between the kingpin and small fish was that of a buyer and seller that such a relationship, alone, is insufficient to tie the buyer to the conspiracy. That said, I am not at all sure that such an instruction works.

          Perhaps the better way is to amend the federal conspiracy statute for drugs, that is, 21 U.S. Code § 846. At present, no overt act is required for federal drug conspiracy cases involving drugs as opposed to the general conspiracy statute, 18 U.S. Code § 371.

          To avoid small fry, one might want to add a strong overt act requirement to section 846 such that before the government could connect someone to a drug conspiracy the government would have to prove that small fry took a substantial step to further the interests of the conspiracy beyond mere street sales.

          Again, your question shows a deep understanding of some the technical legal issues that makes the policy issues difficult. Sadly, too many people focus on the policy without understanding the technical aspects. Not you. And, good for you.

          All the best.

          RGK

          • shg
            24 April 2016 at 9:48 am -

            That’s very interesting, given that I’ve made the argument many times that buyer and seller cannot be conspirators as they are on opposite sides of an arm’s length transaction, and the govt has vehemently argued against my position. How has the govt responded to your instruction?

          • Richard G. Kopf
            24 April 2016 at 5:25 pm -

            Originally, the government screamed about my buyer and seller instruction. Now, the government just shrugs.

            Typically, my cases involve small fry who buy drugs on a “front” and are repeat buyers thus establishing an ongoing relationship with the dealer and an ongoing “agreement” for financing. This typically dooms the buyer.

            All the best.

            RGK