The Fair Sentencing Act will:

• Replace the 100-to-1 ratio with an 18-to-1 ratio;
• Raise the threshold for mandatory minimum sentences (28 grams would trigger a 5-year mandatory minimum and 280 grams would trigger a ten-year mandatory minimum); and
• Eliminate altogether the 5 year mandatory minimum for simple possession of crack cocaine.

Although the bill is not retroactive (applied to those sentenced before its passage), this issue is likely to be addressed by the courts and / or Congress in light of the volume of cases that are potentially affected by it.

]]> http://criminal-defense-law-new-york-city.com/drug-defense/bill-addressing-disparity-in-crack-guidelines-in-obamas-hands/feed/ 0 http://criminal-defense-law-new-york-city.com/drug-defense/congress-poised-to-amend-1001-disparity-in-crack-guidelines/ http://criminal-defense-law-new-york-city.com/drug-defense/congress-poised-to-amend-1001-disparity-in-crack-guidelines/#comments Tue, 27 Jul 2010 21:02:36 +0000 Howard Weiner http://criminal-defense-law-new-york-city.com/?p=321 As I discussed in an earlier post, the Federal Sentencing Guidelines contain a 100:1 disparity between crack and powder cocaine.  Some courts have used this disparity as grounds for a downward departure. Possession of as little as 5 grams of crack cocaine — the weight of two pennies — results in a mandatory minimum sentence of 5 years, while one would need to possess 500 grams of powder cocaine to trigger the same mandatory minimum.  Congress is now considering the Fair Sentencing Act of 2010.

This legislation would:

1.  reduce the current crack/powder disparity from 100:1 to 18:1;

2.  eliminate a mandatory minimum sentence for simple possession (the threshold for a 5 year mandatory minimum would increase from 5 to 28 grams of crack; and

3. lower sentences of approximately 3,000 people each year and save the   government an estimated $42 million in the first five years.

Attorney General Eric Holder stated, “The Department of Justice’s responsibility is not just to win cases, but to do justice. Along with the increased training for prosecutors we have already instituted, these new guidelines will ensure that we strive to meet that standard every day and in every case.”

The Guidelines are being released in the wake of several recent cases which have been dismissed based upon prosecutorial misconduct. These include:

- U.S. v. Stein, et al. (Indictments against former KPMG partners dismissed based upon the government’s violation of their right to counsel);

- U.S. v. Ted Stevens (Indictment against former Senator dismissed due to government’s failure to turn over potentially exculpatory evidence to the defense); and

- U.S. v. Slough et al. (Indictments against five former Blackwater security guards for shootings that left 17 civilians dead dismissed based upon, “a reckless violation of defendants’ civil rights” where, among other things, prosecutors withheld, “substantial exculpatory evidence” from the grand jury and presented, “distorted versions” of witnesses’ testimony.

The memos are available here:

• Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group

• Requirement for Office Discovery Policies in Criminal Matters

• Guidance for Prosecutors Regarding Criminal Discovery

The law allows patients with specific conditions to use marijuana which would be dispensed through licensed “alternative treatment centers”. The conditions which qualify include: cancer, glaucoma, multiple sclerosis, HIV/AIDS, seizure disorder, Lou Gherig’s disease, severe muscle spasms, muscular dystrophy, inflammatory bowel disease, Crohn’s disease, and any terminal illness when the patient is expected to die within a year. The State Health Department will be tasked with writing rules to implement the new law, and other qualifying illnesses may be added to this list.

The National Academy of Sciences Institute of Medicine has found that marijuana can be beneficial in alleviating pain associated with certain debilitating medical conditions. In addition, national polls show that eight in ten Americans support legalizing marijuana for medical use, and nearly half support decriminalizing the drug in general. The move to legalize marijuana for medical purposes by several states comes in the wake of a Department of Justice announcement in October 2009 that it would no longer prosecute those who acted in accordance with state law. Previously, those individuals faced the possibility of federal prosecutions even if their actions were in compliance with state law.

Administratively, the New York City Police Department and the City’s five District Attorneys have agreed to a new procedure to expedite the process of obtaining warrants for blood samples in cases where serious bodily injury or death has resulted, DWI is suspected, and a breath test has been refused.  According to Paul J. Browne, NYPD spokesman, the current warrant application process takes approximately seven hours.

In addition, “Leandra’s Law” has been signed by Governor Patterson.  This new law:

1.  Makes it a felony to drive while having a blood alcohol content of .08 percent or higher with a child 15 years old or younger in the car;  and

2.  Requires first time DWI offenders to install an ignition interlock device.

The Bill is named in honor of Leandra Rosado, an 11 year old girl who was killed after the car she was driving in flipped over on the Henry Hudson Parkway by a driver alleged to be intoxicated.

Although the driver who killed Leandra was charged with Vehicular Manslaughter and Driving While Intoxicated, critics argued that a new crime was needed to specifically address the circumstance of Driving While Intoxicated with a child in the car. The law was also fueled by the case of Diane Schuler, a Long Island woman who killed eight people, including her 2-year-old daughter and three young nieces in July in Long Island after driving for several miles in the wrong direction on a highway.

Ms. Schuler, who also died, had a blood alcohol content of 0.19 percent, and had marijuana in her system.

A  Report issued by that National Academies of Science found that evidence without proper scientific basis – also known as junk science — is routinely admitted in courts across the country in criminal prosecutions.  With the exception of nuclear DNA analysis, the report found that the evidence to support the reliability of many techniques is simply lacking.

This Report has profound implications for any case which the government seeks to introduce the testimony of an expert witness, including drug cases, sex offenses, and computer crimes, and provides a basis to challenge the admissibility of such evidence.  The Report also illustrates the importance of hiring an attorney who is knowledgeable of cutting edge forensic techniques which may be critical to the success of your case.

A stark example of the profound implications of junk science can be seen in the case of Cameron Todd Willingham, who was executed in 2004 by the State of Texas for setting a fire which killed his three kids. In a scathing report, the forensic expert hired by Texas’ own government commission formed to re-investigate the Willingham case and others found that the investigator in Willingham’s case had no scientific basis to conclude that arson had been committed, relied on discredited folklore to reach conclusions, “in an approach that was more characteristic of mystics or psychics.”

Several other renowned arson investigators have publicly echoed this conclusion, and it now appears that an innocent man was executed for nothing more than a horrific accident.

You can view the entire Report here: STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD.

The Department of Justice announced today that it will no longer seek to prosecute those who act in accordance with state law by using or distributing marijuana for medical purposes.  The directive only affects those in the 14 states which currently have medical marijuana laws: Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

As a result of today’s announcement, several ongoing prosecutions and pending sentencings have been postponed.

The Obama Administration made clear that the policy shift should not be seen as the legalization of marijuana.  Rather, it will allow the “efficient and rational use” of government resources by not prosecuting those who were in “clear and unambiguous compliance” of state law.  The memo which was sent to the affected U.S. Attorneys can be viewed in its entirety here.