Josh Gerstein has a long piece at Politico on Obama and crime policy.

Shorter version: Don't look to Obama for help in making the crack cocaine penalty reductions retroactive to help those already serving the unfair, draconian sentences:

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the President believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent, and fair.”

The official also downplayed the notion Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the President agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

Obama has been in office 18 months and not granted a single pardon or clemency.

Via Web MD: A new study published in the Canadian Medical Association Journal finds that marijuana relieves chronic nerve pain and aids sleep. Three puffs a day is all it took for patients to find relief.

The study involved patients with chronic nerve pain due to injury or accident. Some received placebos and others received three different doses of cannabis.

How it worked: [More...]

Unbelievable, but true. At 7.5 feet tall, the
"Assault Intervention Device" is the hottest new non-lethal weapon out there. And it's coming to a jail in LA.

What does it do? It shoots out rays that cause extreme, unbearable pain.

The 7½-foot-tall Assault Intervention Device emits a focused, invisible ray that causes an unbearable heating sensation in its targets – hopefully stopping inmates from fighting or doing anything other than trying to get out of its way, sheriff's officials said.

The device, unveiled Friday at Pitchess Detention Center, will be mounted near the ceiling in a dormitory housing about 65 prisoners, according to Commander Bob Osborne of the Sheriff's Department Technology Exploration Program.

It's intended use: To break up fights between inmates.[More...]

Is the slang used by some African Americans, including some drug dealers, a foreign language? The Smoking Gun reports the DEA is seeking to hire ebonics linguists to assist in their drug investigations, particularly on wiretaps. They even have the contract.

A maximum of nine Ebonics experts will work with the Drug Enforcement Administration’s Atlanta field division, where the linguists, after obtaining a “DEA Sensitive” security clearance, will help investigators decipher the results of “telephonic monitoring of court ordered nonconsensual intercepts, consensual listening devices, and other media”

The DEA’s need for full-time linguists specializing in Ebonics is detailed in bid documents related to the agency’s mid-May issuance of a request for proposal (RFP) covering the provision of as many as 2100 linguists for the drug agency’s various field offices. Answers to the proposal were due from contractors on July 29.

Case law involving Ebonics arises far more frequently in civil cases, particularly workplace harassment and discrimination cases. One court opinion says "Ebonics" is also known as "African American Vernacular English." (Webster's II New College Dict. (2001) p. 356, col. 1.)

In my experience, drug agents frequently misinterpret the conversations they hear on the wiretaps, and that includes Ebonics as well as official languages like Spanish or Hmong. I don't think their reliability or their methodology should pass muster under Daubert. But there's very little case law on it. [More...]

Bump and Update: I have been advised by the AUSA on the Bartkowicz case that Washington is not involved and did not direct, dictate or write the Government's motion or brief. She wrote the brief, and the case is proceeding with the approval of our new U.S. Attorney who took office this week. So if you are in a federal district other than Colorado, you don't have to worry the motion described below is the product of a coordinated effort by DOJ in Washington to prevent defendants from raising compliance with state law or the Holder/Ogden memos as a defense to federal prosecution. It appears that it's being decided by the individual districts and on a case by case basis.

***

Original Post

Some of you may remember the case of Chris Bartkowicz, a Colorado marijuana grower who allowed the media to film and air a news segment on the marijuana grow in his house. When the DEA saw it on TV, they promptly arrested and charged him. The Government said he had 224 plants, and based on the three charges in the Indictment, if convicted, due to his prior convictions, he now faces mandatory minimum sentences of ten years, twenty years, and sixty years. The Government maintains he could receive a life sentence. (The Government's initial complaint is here.)

The Government filed a 50 page motion this week seeking to prevent Bartkowicz from arguing the Holder or Ogden memorandum or Colorado's medical marijuana law as a defense to the charges. The money quote from the motion, which is available on PACER:[More...]

From 2003: It is better than 5, 10, 20, or 100 guilty men go free than for one innocent man to be put to death. This principle is embodied in the presumption of innocence. In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy. [also, Alexander Volokh wrote a law review article on the issue, available free here.]

The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution's burden of proof--that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt--but also must instruct on the presumption of innocence--by informing the jury that a defendant is presumed innocent. The Court stated,

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

The opinion goes on to trace the history of the presumption of innocence:[More...]

Gregory Taylor was sentenced to 25 years to life in prison for stealing food from his church. It was his "third strike" under California law.

Stanford University Law School's Three Strikes Project, which is dedicated to representing offenders sentenced to life under California's harsh three strikes law, filed a habeas petition for him.

A California judge yesterday ordered Taylor's release, reducing his sentence to 13 years...time served. His prior offenses:

He was convicted of third-strike burglary due to convictions of robbery twice in the 1980s, once for stealing a purse containing $10 and once for trying to rob a man on the street. He didn't use a weapon in either case, and no one was injured.

[More...]

Sir Ian Gilmore, the outgoing President of Britain's Royal College of Physicians has called for the decriminalization of drug use in a parting e-mail to the organizations 25,000 members. He said decriminalization has the potential to both reduce crime and improve health.

He endorsed a recent article in the British Medical Journal by Stephen Rolles, from the think tank Transform Drug Policy Foundation, which argued that the policy of prohibition had harmed public health, encouraged organised crime and fuelled corruption. Sir Ian told the BBC: "Everyone who has looked at this in a serious and sustained way concludes that the present policy of prohibition is not a success.

[More...]:

Speaking in New Orleans this week, Attorney General Eric Holder said it's time to "turn the page" on our approach to crime and expressed commitment to re-entry programs.

...we can’t simply arrest our way out of the problem of violent crime. Of course, incarceration is necessary for public safety. But it’s only partially responsible for the declining crime rates we’ve seen. It’s not a sole, economically sustainable, solution.

Over the last few decades, state spending on corrections has risen faster than nearly any other budget item. Yet, at a cost of $60 billion a year, our prisons and jails do little to prepare prisoners to get jobs and “go straight” after they’re released. People who have been incarcerated are often barred from housing, shunned by potential employers and surrounded by others in similar circumstances. This is a recipe for high recidivism. And it’s the reason that two-thirds of those released are rearrested within three years. It’s time for a new approach.

[More...]

The Rand Corporation has released a new report finding legalization of marijuana in California could drop prices as low as $38.00 per ounce.

Researchers associated with the Rand Corp.'s Drug Policy Research Center said Wednesday that not much is certain about the potential impact of Proposition 19 except that the price of California's choicest weed could plunge more than 80%, down from $300 to $450 per ounce to about $38.

"That's a significant drop," said Beau Kilmer, co-director of the center. "We're very clear about the fact that the price will go down."

The implications: [More...]

Last week I wrote about the DEA and narcosubmarines.

Today, the DEA helped Ecuadoran police seize one.

The DEA says (received by e-mail, no link yet, press release should be available here soon):

As a result of DEA intelligence, Ecuadorian authorities were able to seize the vessel before it was able to make its maiden voyage. This is the first seizure of a clandestinely constructed fully operational submarine built to facilitate trans-oceanic drug trafficking.

I'm not sure why this is a first. In 2008, when Captain Nemo was arrested, police said they found two and destroyed them. More on Captain Nemo here.

According to the DEA and Coast Guard, the cartels have a new method of transporting large amounts of cocaine -- Narcosubs. The evolution from the 1980's has gone from flying cocaine into the U.S. via planes and landing at clandestine air strips, to dropping it from planes, to "go fast" boats, to narcosubs.

In the film above, it's explained that a narcosub is really just a go fast boat with a cover. The top 1/4 is above water. Vents are put in for the crew to breathe. There's a drop hatch so if they get caught, the load will fall to the floor of the ocean. At the time the film was made, 36 narcosubs had been seized.

Authorities are concerned that if drugs can be transported this way, so can weapons and explosives.