NARCOTICS Category Archives — Page 6 of 7 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

The Assumptions Relied Upon by Congress When it Passed the Mandatory Minimums for Crack Cocaine Offenses Have Proven False. The Justifications for the Sentencing Disparity Between Powder Cocaine and Crack Cocaine are not Supported by Fact or Reason

February 17, 2009 | Tilem & Associates

As I have previously discussed, Congress justified Draconian mandatory minimum sentences for federal crack cocaine offenses upon their mistaken belief that, among other things, crack cocaine was more dangerous than powder cocaine because it was believed to be more addictive and create more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular with teenagers; and that its low cost made it more accessible and popular.

These concerns and beliefs have proven false. As observed by Congressman Alcee Hastings (D Fl): “Rather than waging war on drugs, [the mandatory minimums for crack offenses] waged war on America’s poor and minorities.” Rep. Hastings also noted that the crack mandatory minimums were “rooted in propaganda rather than empirical data.” (See Congressman Alcee Hastings’ website )

The reality is, the mandatory minimums are not being imposed on the “major” and “serious” suppliers of crack cocaine but instead the majority of crack cocaine defendants are small-scale, street-level dealers. The 100:1 ratio disproportionately impacts far more low-level traffickers than it does the intended targets of the ratio. As observed by the Supreme Court, “the 100-to-1 ratio can lead to the anomalous result that retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).

The Anti-Drug Abuse Act of 1986 Established a 100:1 Crack Cocaine to Powder Cocaine Ratio Resulting in Crack Offenders Receiving Decades in Prison While Powder Cocaine Offenders Receive Months or at Most Several Years in Prison for Offenses Involving the

February 14, 2009 | Tilem & Associates

New York criminal defense firm Tilem & Campbell is vigorously challenging the constitutionality of the mandatory minimum sentences for federal crack cocaine offenses set forth in the Anti-Drug Abuse Act of 1986 (ADAA). We currently have one appeal on this issue pending before the Second Circuit Court of Appeals and will be filing another appeal shortly.

The ADAA established a two-tier system of sentencing with 5 and 10 year mandatory minimum sentences for certain manufacturing and distribution offenses. Congress passed the 10 year mandatory minimum to combat “major drug dealers” while the 5 year mandatory minimum was for the “serious traffickers”. In reality, however, the mandatory minimums are weight driven. It is the weight of the drugs involved that controls with no regard for whether the defendant is a “major dealer” or “serious trafficker”.

The ADAA also established a 100-to-1 disparity between the distribution of powder cocaine and crack cocaine (21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B)). For example, distributing just 5 grams of crack cocaine (about a thimble full) carries a mandatory minimum five-year federal prison sentence. However, one must distribute 500 grams of powder cocaine to trigger that same five-year federal prison sentence. (21 U.S.C. § 841).

The Anit-Drug Abuse Act of 1986 and the Revival of Draconian Federal Mandatory Minimum Sentences

February 11, 2009 | Tilem & Associates

Just 16 years after the passage of The Comprehensive Drug Abuse Prevention and Control Act of 1970 which all but eliminated harsh mandatory minimums for federal drug offenses, Congress reversed course and passed The Anti-Drug Abuse Act of 1986 (ADAA). The ADAA was passed by Congress during the media frenzy that followed the cocaine induced death of University of Maryland basketball star Len Bias. The ADAA established harsh mandatory minimum sentences for federal drug offenses involving “crack” cocaine (referred to as “cocaine base” in the federal statutes).

Congressional members used Bias’ high-profile death as a political opportunity to portray a “tough on crime” stance. However, Congress utterly failed to undertake any discussion or debate about the failings of the mandatory minimums found in the The Boggs Act of 1951and the Narcotics Control Act of 1956 (which I have discussed in previous blogs).

In fact, Sen. Specter noted that Congress “may be acting with undue haste” and Sen. Mathias stated that none of the members of the Senate “had an adequate opportunity to study this enormous package” and that the ADAA “did not emerge from the crucible of the committee process, tempered by the heat of debate.”

PRISON WARDENS, PROBATION OFFICERS, FEDERAL JUDGES AND LAW ENFORCEMENT PERSONNEL OPPOSE MANDATORY MINIMUMS FOR DRUG OFFENSES

January 26, 2009 | Tilem & Associates

In continuing with my commentary on federal mandatory minimum sentencing for drug offenses and Tilem & Campbell’s challenge to the constitutionality of such sentences, it’s of paramount importance to point out other, influential groups and individuals who are also opposed to mandatory minimums for drug offenses. As previously discussed, former Presidents Kennedy, Johnson and Nixon were all opposed to mandatory minimums for drug offenses and, at Nixon’s urging, in 1970, Congress abolished almost all mandatory minimum sentencing for federal drug offenses with the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

These former Presidents were not, and are not, the only influential individuals opposed to such sentences. With regard to the Boggs Act of 1951 and the Narcotics Control Act of 1956 (both of which contained draconian mandatory minimum sentences for federal drug offenses), a Senate Judiciary Subcommittee found that 92 percent of federal prison wardens who responded were opposed to the mandatory minimum sentences, and 97 percent were opposed to the prohibition against probation or parole. Of the probation officers who responded, 83 percent were opposed to mandatory minimums while 86 percent were opposed to prohibition against probation or parole. Of the federal judges who responded, 73 percent were opposed to mandatory minimums, and 86 percent were opposed to the prohibition against probation or parole.

Many members of law enforcement also supported the Comprehensive Drug Abuse Prevention and Control Act of 1970 and its elimination of the mandatory minimum sentences found in the Boggs Act of 1951 and the Narcotics Control Act of 1956. According to then Congressman William L. Springer (R Ill.): “It is the opinion of most law enforcement people that the harsh mandatory sentences in narcotics law have been a hindrance rather than an aid to enforcement.”

THE RICHARD NIXON ERA – THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970 ELIMINATES MANDATORY MINIMUMS.

January 19, 2009 | Tilem & Associates

Tilem & Campbell is currently appealing the constitutionality of the federal mandatory minimums for federal crack offenses and the 100:1 powder cocaine/crack cocaine rationale. In continuing with a thorough review of the failings of prior mandatory minimums for drug offenses, I previously touched on the Boggs Act of 1951 and the Narcotics Control Act of 1956. When Richard Nixon took office in 1969 he supported enforcement of then current drug laws to combat the county’s admitted drug problem. However, he came to realize that was not the best course of action.

(See www.presidency.ucsb.edu/ws/index.php?pid=2353&st=&st1=. (Visited December 14, 2008).

Nixon backed away from mandatory minimums and pushed The Comprehensive Drug Abuse Prevention and Control Act of 1970 (hereinafter the “1970 Act’) through Congress which eliminated all of the mandatory minimum drug sentences but one. (Mandatory minimums from between 10 and 20 to life remained for Engaging in a “continuing criminal enterprise”). The 1970 Act was an acknowledgment of failings of both the Boggs Act of 1951 and the Narcotics Control Act of 1956. The 1970 Act was in lock-step with President Kennedy’s aversion to the mandatory minimums, Kennedy’s Commission’s findings against the mandatory minimums and President Lyndon Johnson’s opposition to the mandatory minimums. The Act had wide bi-partisan support including that of then Congressman, and future President of the United States, George H. W. Bush who supported the repeal of the mandatory minimums found in the Narcotics Control Act of 1956.

FEDERAL MANDATORY MINIMUM DRUG SENTENCING: LYNDON JOHNSON TAKES OFFICE AND ESTABLISHES THE KATZENBACH COMMISSION

January 16, 2009 | Tilem & Associates

As I indicated in prior blogs, Tilem & Campbell is currently appealing two cases challenging the constitutionality of the federal mandatory minimum sentences for crack cocaine offenses and the 100:1 powder cocaine-to-crack cocaine ratio that results in grossly disproportionate sentences between the mostly minority crack offenders and their mostly white powder cocaine cohorts.

One Appellant Brief is already submitted in the United States Court of Appeals for the Second Circuit and as the drafter of that Brief, I chose to analyze many different sources of information to show that the crack cocaine mandatory minimum sentencing laws (21 USC 841) were based on flawed data and have not achieved their intended goals. In doing so, I analyzed the history of other Congressional Acts imposing draconian mandatory minimums for drug offenses including the Boggs act of 1951 and the Narcotics Control Act of 1956. I also discussed President Kennedy’s disfavor for mandatory minimums and the conclusions of a Commission he assembled critical of such sentences and their recommendation that sentences fit both the offender and the offense and that rehabilitation should be the most important goal – not retribution.
I chose this strategy not to fill up space discussing irrelevant long-abolished statutes or the policies’ of Presidents who served 35 to 45 plus years ago but instead to elucidate the fact that the draconian mandatory minimum sentences of imprisonment for drug offenses has consistently failed over decades and tens of thousands of cases to solve the problem and stem the flow of drugs and their use. It was and remains the objective of my Brief to attack these mandatory minimums not only on strict scrutiny analysis but also on the rationale basis front.

In other words, I want to show the Second Circuit, through solid empirical data, that this mandatory minimum, throw away the key approach has consistently failed; that study after study has concluded that the rational for the mandatory minimums for crack and the 100:1 ratio was flawed and that mandatory minimums have failed for over 57 years to achieve their desired goal; and that the Kennedy Administration, the Johnson Administration and the Nixon Administration all opposed mandatory minimum sentences for drug offenders based upon extensive Committee research.

Our Brief followed with commentary regarding the Sentencing Commission’s strong disagreement with the ratio and the mandatory minimums as well as the United States Supreme Court’s acknowledgment in Kimbrough that the fears were unrealized and that crack and powder cocaine are one in the same drug. Our brief also analyzed and the pending bi-partisan support for Legislation abolishing the ratio. This I argued, supports a strong argument the current laws fail under strict scrutiny analysis because they are not narrowly tailored to achieve a compelling government interest insofar as all the experts recommend rehabilitation over incarceration and therefore, for a mandatory minimum to be deemed narrowly tailored, it cannot lump all offenders, (both addicts and major suppliers), in the same category.

The mandatory minimums for crack cocaine also fail the rational basis test because we are imprisoning minorities for decades for crack offenses while their white counterpart is receiving less than two years for powder offenses involving 100 times the amount of powder cocaine which, as authoritative experts have determined, is the same drug.

JOHN KENNEDY TAKES OFFICE IN 1961 AND OPPOSES MANDATORY MINIMUMS

January 13, 2009 | Tilem & Associates

Tilem & Campbell is currently appealing the constitutionality of the federal crack cocaine statutory mandatory minimum sentences (21 USC 841). In our most recent appeal, we discussed, among other things, the history of mandatory minimum sentences for federal drug offenses starting with the Boggs Act of 1951 and followed by the Narcotics Control Act of 1956. Both Acts imposed onerous mandatory minimum prison terms for relatively minor drug offenses. Both Acts also failed to stem the flow of drugs and their use. We discussed these prior Acts and their utter failures, as well as other empirical data, to support our argument that mandatory minimums for drug offenses have no rational basis.

In 1963, President Kennedy assembled the President’s Advisory Commission on Narcotics and Drug Abuse to address the country’s drug problem. Recall, at that time, drug offenders were facing the mandatory minimums found in Narcotics Control Act of 1956. The Commission studied drug use and the laws pertaining to those who abused drugs. The Commission concluded that rehabilitation rather than retributive punishment was essential to addressing the problem.

Regarding sentencing, the Commission opined that penalties should fit both the offender and the offense and be tailored to promote the offender’s rehabilitation. Draconian sentences, concluded the Commission, did not provide an effective deterrence. To the contrary, the Commission observed that the drug users were risking long prisons sentences to get their drugs. In other words, the lengthy mandatory minimums were having little or no affect on drug use.

A BRIEF HISTORY OF FEDERAL MANDATORY MINIMUM SENTENCING FOR FEDERAL DRUG OFFENSES

January 10, 2009 | Tilem & Associates

Tilem & Campbell is vigorously challenging the federal mandatory minimum crack cocaine sentencing scheme found in 21 USC 841. We are currently appealing two cases to the United States Court of Appeals for the Second Circuit. While most believe mandatory minimums were a new concept resulting from the crack cocaine explosion in the early 1980s, the truth is, mandatory minimums for drug offenses have a 57 year history in the United States. As you will learn, from their inception, mandatory minimums have never achieved their desired result.

Draconian mandatory minimums for drug offenses were previously implemented by Congress in 1951 and 1956 and they failed miserably and were ultimately repealed. One thing that is apparent about our government officials including the elected Legislatures, Presidents as well as the appointed members that head our Administrative agencies and the Federal Judiciary is that they simply do not learn from history. It’s as if they don’t even know it.

The Boggs Act of 1951
What Congress was seemingly oblivious to when they slammed through The Anti-Drug Abuse Act of 1986 (and its draconian mandatory minimums for relatively small amounts of crack cocaine) in the middle of the night, was that approximately 35 years earlier in 1951, Congress had passed the Boggs Act which also had established mandatory minimum prison sentences for drug crimes.

Under the Boggs Act, simple possession of cocaine, heroin or cannabis carried a mandatory minimum 2 years with a maximum 5 years prison term. A second offense carried a mandatory minimum 5 years with a maximum of 10 years in prison. A third offense carried a mandatory minimum of 10 years with a maximum of 15 years in prison. Just as the 1986 ADAA was supported with flawed science, unfounded fears, and outright and erroneous concerns; so too was the Boggs Act and subsequent federal drug laws.

THE FEDERAL STATUTORY MANDATORY MINIMUM SENTENCES FOR CRACK COCAINE OFFENSES (21 USC 841) ARE UNCONSTITUTIONAL ON SEVERAL GROUNDS.

January 7, 2009 | Tilem & Associates

As I indicated in prior blogs, Tilem & Campbell is currently challenging the constitutionality of the federal mandatory minimum sentences for federal crack cocaine offenses. We currently have an appeal pending in the United States Court of Appeals for the Second Circuit and will be filing another shortly on behalf of an African-American appellant.

Our current appeal concerns an Hispanic defendant sentenced to the 10 year mandatory minimum for four federal felonies involving approximately 112 grams of crack cocaine (21 USC 841). We challenged the constitutionality of the 10 year mandatory minimum sentence on three grounds. Briefly, we argued that depriving the defendant of his liberty, a fundamental right, longer than one convicted of a powder cocaine offense involving the same weight violates his equal protection rights under both strict scrutiny and rational basis review.

We also argued that the 100:1 ratio and corresponding grossly disproportionate sentences imposed upon minorities for crack offenses compared to those sentences imposed upon the mostly white offenders convicted of powder cocaine offenses involving the same weight violates the defendant’s Fifth Amendment Equal Protection rights (note, the Equal Protection rights found in the Fifth Amendment apply to the Federal Government while the Equal Protection Clause in the Fourteenth Amendment applies to the States).

TILEM & CAMPBELL APPEALS DISTRICT COURT’S FINDING THAT THE FEDERAL STATUTORY MANDATORY MINIMUM SENTENCES (21 USC 841) FOR COCAINE BASE (“CRACK”) OFFENSES ARE CONSTITUTIONAL.

January 2, 2009 | Tilem & Associates

At Tilem & Campbell, we represent a wide variety of defendants charged with anything from traffic infractions to serious felonies including controlled substance offenses. In a recent federal case, we represented a defendant charged in the United States District Court for the Southern District of New York with four drug offenses involving a total of approximately 112 grams of crack cocaine. Three of the offenses were Class A felonies which carried a mandatory minimum sentence of 10 years with a maximum of life imprisonment. Due to a prior drug felony, however, had the defendant gone to trial and lost, he would have been facing 20 years to life. The remaining offense was a Class B felony which carried a mandatory minimum sentence of 5 years with a maximum of 40 years imprisonment.

Senior Partner, Peter Tilem, a former Assistant District Attorney in the New York County District Attorney’s Office (Manhattan) was defendant’s lead attorney and successfully negotiated a plea bargain pursuant to which the defendant would plead guilty as charged. In return the Government would not seek the 20 year mandatory minimum but instead would recommend the 10 year mandatory minimum. The plea agreement did not require that the defendant waive his right to appeal his sentence.

The imprisonment range recommended by the U.S. Sentencing Guidelines as calculated in the Pre-sentence Investigation Report was 78-97 months based upon a base offense level of 27. However, due to the statutory mandatory 10 year minimum term of imprisonment found in 21 U.S.C 841(a)(1) and 841(b)(1)(A) for offenses involving crack cocaine, the defendant’s minimum term imprisonment increased to 120 months pursuant to USSG § 5G1.1(b).

This sentencing range was substantially higher than it would have been had the offenses involved powder cocaine because the Guidelines as well as the relevant statute (21 U.S.C 841) treat one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, had defendant been sentenced for a powder cocaine offense involving the same quantities, he would have been facing a sentencing range of 15-21 months.