As of 2015, there were 2,800 drug courts in the United States and they were working with 120,000 defendants per year. The idea behind these courts is to use the criminal justice system to compel addicts to rehabilitate themselves. The ultimate goal is to reduce recidivism for drug use and the other crimes that often accompany drug addiction. In order to do this, drug courts use both a carrot and a stick approach with addicts. Courts promise to reduce or eliminate jail time in exchange for the successful completion of a drug treatment program–hopefully saving money for taxpayers along the way.

The first drug court program was started in 1989 and represented a very different approach to dealing with drug crimes. A traditional criminal justice approach is for the court to only analyze if the state has proved that the defendant committed the crime and then to sentence him or her. Drug courts are an attempt to cure the underlying cause of these crimes in the first place, based on a better understanding of the nature of addiction. Drugs were increasingly being viewed as a public health crisis and not an individual moral failing. Traditional criminal justice approaches can do nothing to combat that kind of problem and are not designed to take those factors into consideration.

Drug courts were therefore built on the idea that the court is part of a team–including law enforcement, prosecutors, social workers, and the defendant–that is engaged in helping the defendant to stop using drugs and not commit future crimes. The judge in a drug court also takes on an active role in the defendant’s treatment. This engagement by the court is actually a key factor in the lives of defendants where drug courts have proven successful. At the very least, drug courts represent a judicial system that is trying to adapt to our evolving knowledge about drug addiction and the best ways to combat it.

But drug courts may not be as enlightened a solution to the problem of drug addiction as they seem at first blush. There are serious concerns about the scope of drug courts in terms of who can participate, the role of judges, and the rights that defendants give up in order to be a part of this process. There are also questions about the efficacy of these programs and whether the same goals could be accomplished through different means.

How Do Drug Courts Work?

Drug courts actually come in two main varieties, which is a nuance that is sometimes lost in the debate–deferred prosecution, and post-adjudication. In the deferred prosecution model (sometimes referred to as a “diversion” model), defendants are sent to a rehabilitative program or are given a set of guidelines before they are prosecuted. If they successfully complete their program the charges are dropped. In contrast, the post-adjudication model requires that the defendants plead guilty to the charges they face and are then sent to a drug program. If they complete the program successfully the sentence will be waived and the record potentially expunged.

This may not seem like an important difference if, after a drug program is completed, the defendant avoids jail time in both cases. But it is a very important difference for defendants who don’t successfully complete their programs. This is because in a deferred prosecution model the defendant goes back to the beginning of the process and still retains their right to plea bargain or plead not guilty and receive a jury trial. For defendants with a weak case against them or sympathetic facts, that can be significant. The defendant in a post-adjudication model drug court goes right to the sentencing phase of their trial–because in order to participate in the program a defendant must first plead guilty.

In this short video, Mae Quinn, the co-director of the Civil Justice Clinic at Washington University in St. Louis, discusses drug courts and her experience working in one of the earliest ones in the 1990s.

Concerns about Drug Courts

Quinn’s video presents us with several concerns about drug courts that should be unpacked. The first concern is one that could be viewed as both a blessing and a curse. In drug courts, judicial involvement with the defendant is much more intimate than it is in a traditional court setting. Judges are less like the neutral arbitrators of a normal court proceeding. Instead, they are as Quinn suggests, part of a “team” of people–which includes the defendant–who are working on the defendant’s sobriety. This could be of enormous benefit to drug users. And, in fact, the research suggests that one of the main indicators of success for a defendant in a drug court program is the level of involvement that a judge has in the process.

One study found a startling difference between defendants who were required to attend biweekly hearings with the judge in their case and those who only attended hearings on an “as-needed” basis. In the former group, 80 percent of participants graduated (completed the program) and in the latter group, only 20 percent of participants did so. Both groups involved high-risk drug court participants, meaning participants who had previously failed treatment.

One of the criticisms of drug courts is that the people who need them the most often don’t have access to them. Federal grants to establish these courts, which are still managed on the state or local level, make excluding violent offenders a pre-requisite to taking grant money. These courts also tend to restrict access to drug court programs for addicts who have long criminal records or histories of failure. Placement in a treatment program can also be difficult to get, with long wait times before entering into a program. Since placement in a program within 30 days is one of the strongest predictors of a successful outcome, these wait times have a negative impact on the success of drug courts, especially for women who have to wait twice as long for an available spot in a treatment program.

As Professor Quinn discusses in the video, defendants sometimes receive a longer sentence than they otherwise would have if they participate in a drug court program and fail–sometimes two to five times the length of the prison term they would otherwise have received. Since “flash incarcerations,” or short prison stays, are also one of the sanctions available to judges they may also spend more time in jail even if they have the charges dropped after graduating from the program and therefore face no sentence for their initial crime. Drug courts may also encourage law enforcement officials to arrest more low-level drug offenders since they view drug courts as a better means of processing them, which puts additional stress on the system and exacerbates some of these concerns.

Yet there is evidence that for some individuals these programs can be very effective. Take a look at this Ted Talk by Judge David Ashworth, who is the presiding judge of the Lancaster County Drug Court.

Measuring Results

The courts that Judge Ashworth describes may be different from the “typical” drug court because they are controlled at the state and local level and can vary widely. For example, Judge Ashworth’s court specifically targets “high risk” drug users. Participation is also voluntary and is designed, by his own admission, for people who already want to get clean. It is, however, a post-adjudication style court, meaning that the defendant pleads guilty as the first step in their drug court process.

The statistics he cites suggest that the drug court of Lancaster County has been particularly successful for those who graduate, reducing recidivism rates to below those of the national average. But not all of the participants in drug courts end up graduating from the program. Most of the pro-drug court data out there is written in terms of how much recidivism is reduced among graduates, but may not include the number of initial participants who enter the program in the first place.

Critics claim that this can lead to an overly positive picture of the impact of drug courts, particularly in jurisdictions that cherry-pick data. Jurisdictions are forced to exclude many types of potential defendants, most notably anyone who has committed a violent crime, in order to receive federal funding. One study indicated that, because of the eligibility restrictions, only 7 percent of the 1.5 million arrested for drug offenses were eligible to participate. Only half of the initial participants in most drug court programs end up graduating. A study of New York’s drug courts by the Urban Institute and the Center for Court Innovation found that for those who participated in drug courts, 64 percent of the non-graduates were re-arrested within three years, versus 36 percent of the graduates. But of those who were arrested but did not participate in a drug court, only 44 percent were re-arrested in the same period. So defendants were actually more likely to be re-arrested if they went to drug court and failed to complete the program than if they had gone through the normal court process in the first place.

One of the most significant issues with drug courts that Judge Ashworth did not address is the issue of maintenance treatment. Maintenance treatment, which involves using drugs like methadone to treat opioid addiction, is by far the most effective means of treatment–reducing the risk of death by 66 to 75 percent. But a third of drug courts will not allow it.

Drug courts vary widely in different localities, just as their effectiveness varies widely based on the kinds of judges serving on them. That can be positive in that it allows jurisdictions to experiment with different methods of operation. However in jurisdictions where those experiments are unsuccessful, it can lead to tragic outcomes and the judges involved in drug courts may not be specially trained in the science behind addiction, particularly opioid addiction. The increased flexibility of judges to deal with drug addicts in a drug court setting is only a positive if these judges are both eager to help the addicts in their court and properly educated on how to do so.

Conclusion

As a society, we have acknowledged that drug addiction, and the crimes that accompany it, are somehow different than other crimes; that it is as much a public health crisis as it is an issue of safety. Conservatives and liberals are both willing to seek innovations in how we deal with these individuals. Drug courts actually end up appealing to both sides of the aisle for various reasons.

The truth about drug courts is more complicated than it appears. These programs are not “hug-a-thug” initiatives, as Judge Ashworth points out. And while they may save money, they only do so when they keep people from seeing jail time at all, not when they just delay incarceration until after participants fail the program. The best elements of drug courts–judicial flexibility and interdisciplinary teams working with defendants–should be encouraged. In fact, these characteristics could be beneficial in other parts of the justice system as well, even for violent offenses. But the negative aspects need to be addressed. Defendants should not be coerced into pleading guilty to participate in treatment. Access to rehabilitation should be opened up to more cases, not just the “easy” ones that make drug courts look better, access should be increased for female offenders, and maintenance treatment for opioid addiction needs to be addressed.

Resources

The Sentencing Project: Drug Courts: A Review of the Evidence

Pacific Standard: How America Overdosed On Drug Courts

SADO: Michigan State Appellate Defender Office

WhiteHouse.gov: Drug Courts Fact Sheet

TribLive: Westmoreland District Courts First in PA to Offer Drug Treatment in Lieu of Punishment

National Institute of Justice: Drug Courts

U.S. Department of Justice: Drug Courts

DrugWarFacts.org: Drug Courts

Atlanta Journal-Constitution: Pro & Con: Drug Courts An Effective Alternative For Offenders?

Open Society Foundation: Drug Courts Are Not The Answer

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

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The Federal Communications Commission (FCC) is officially reducing a big burden for American prisoners–the huge cost of prison phone calls. On October 22, the FCC voted to lower the cost of jail and prison phone calls in both and state and federal prisons.

The FCC explained its motivation for changing the rules, disclosing:

Acting on its mandate to ensure that rates for phone calls are just, reasonable and fair for all Americans, the FCC is working to rein in the excessive rates and egregious fees on phone calls paid by some of society’s most vulnerable: people trying to stay in touch with loved ones serving time in jail or prison.

In most cases, inmates’ telephone calling options are limited to one or more of the following calling types: collect, debit account or pre-paid account. Also, incarcerated persons typically may not choose their long distance service provider. These factors, combined with unrestricted long-distance rates, often result in unreasonably high phone bills for inmates’ families.

Currently, phone calls in some prisons can run as high as $14 per minute. Traditionally, prisons or jails have entered into contracts with companies that provide the phone services. Those companies get a chunk of the charges, so there’s motivation to keep upping the prices.

But under the new regulations, phone calls from inmates will be as low as 11 cents per minute in some prisons. Fifteen minute calls, both in state and out state will be capped at $1.65. Additionally, certain service charges will be capped. For example, service charges on Telecommunications Relay Service equipment–equipment that allows deaf or otherwise disabled inmates to make calls–will be prohibited. Flat rate calls will also be eliminated. These new regulations will go into effect in 2016.

These high rates were a hugely prohibitive cost for families who have loved ones in prison. It can break families apart–more than 2.7 million American children have an incarcerated parent. Moreover, it could be dangerous to cut prisoners off from their families. Evidence shows that allowing prisoners to talk to their loved ones can reduce recidivism rates. Cheryl Leanza, an advocate for reforming prison phone policies explained to the Sacramento Bee, “Society and communities are safer because they’re not going to re-offend if they stay connected with a network that can check in with them and make sure they’re alright.” The FCC did a good thing this week by making sure that families can check in with their loved ones–regardless of legal status.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Incarcerating teens–a punishment that is meant to prevent crime–often tends to push youth away from schools and into even more crime. This revelation comes from a recently published study in the Quarterly Journal of Economics, which found a new connection between juvenile incarceration and troubles later in life. The study’s conclusions might not come as a surprise, but it helps explain an all-too-familiar pattern in which offenders return to prison shortly after their release. These findings also point to a larger question: is it time to abandon juvenile incarceration for other alternative methods such as counseling and restorative justice?

In the study, researchers examined the outcomes of more than 35,000 juvenile offenders in Chicago over a 10-year period. They found that incarceration lowered graduation rates by 13 percent and increased the chance of adult incarceration by 23 percent. The incarceration of these juveniles, especially those around the age of 16, significantly decreased the likelihood that they would return to school and graduate.

Researchers compared groups of juveniles who–for the same offense–received either an incarceration sentence or some alternative form of punishment. Doing so helped the researchers understand the direct effects of incarceration, particularly because the likelihood of such a punishment varies between judges. Joseph Doyle, who co-authored the study, further explained this point in a press release,

Some kids get a judge who will place them in juvenile detention, other ones get a judge who will be less likely to do so, and comparing the outcomes of the kids across the judges, we can actually say what the causal outcome is of placing the kids in juvenile detention.

Doyle believes that during periods of incarceration, teens meet others who are in trouble, which could lead them to form social groups that are not beneficial to already struggling juveniles. Doyle also says that, “there could be a stigma attached to it, maybe you think you’re particularly problematic, so that becomes a self-fulfilling prophecy.” This is known as labeling theory in the criminology world, where an offender’s actions are influenced by the way he is described and classified. Labeling theory argues that by incarcerating an individual, he begins to see himself as a criminal and will likely commit more crimes in the future.

Juvenile incarceration creates a vicious cycle where an incarcerated teen eventually becomes imprisoned as an adult, which can often lead to the loss of federal assistance benefits such as loans, food stamps, and welfare. As a result, they have a harder time finding a job, which further incentivizes crime as a source of income. With 75 percent of state prisoners and 69 percent of federal prisoners having not finished high school, education seems essential to preventing criminal offenses. Incarcerating teens takes them out of school and dramatically increases the likelihood that they will not return later on.

In light of this research, alternative measures to combating juvenile delinquency might be the wave of the future. Alternatives like restorative justice, which focuses on repairing harm caused by the offender instead of simply punishing him, have already proven to be effective in combating delinquency.

A restorative justice program often involves both the offender and the victim through counseling, victim-offender conferencing, restitution, and community service. In victim-offender conferencing, both parties are encouraged to discuss their issues in the hopes of finding a resolution and punishment. This is often a more attractive alternative to putting the punishment and resolution process in the hands of a judge, who might be inclined to incarcerate the offender. Restitution simply involves showing remorse and paying the victim back for what was taken.

For more information on restorative justice check out Law Street’s explainer.

In an effort to find an alternative to juvenile incarceration, Barron County, Wisconsin Circuit Court Judge Edward Brunner helped form what would become the Barron County Restorative Justice Program back in 2000. The program employed incarceration alternatives including victim-offender conferencing and teen court, both of which gave juvenile offenders the opportunity to make things right with their victims and the community.

By 2007, Barron County saw a dramatic decrease in juvenile offenses relative to the rest of the state. Barron County’s juvenile arrest rate was 34.2 percent lower in 2007 than it was in the year before the program’s inception, meanwhile the rest of the state only saw a 21.7 percent decrease in the same time span.

Other places, both inside and outside the United States, also experienced decreases in juvenile crime after implementing restorative justice programs. New Zealand saw drastic reductions in juvenile offenses and recidivism after instituting a similar system, and its satisfaction rates among the victims and offenders rose as high as 90 percent.

This recent study shows that juvenile incarceration may not be the best solution for deterring future crime. Kids who are introduced to the juvenile prison system tend to commit more crimes and carry their high recidivism rates into adulthood, and as a result, the vicious cycle of a “career criminal” begins to emerge. If the goal is to prevent crime and help juvenile offenders, perhaps it is now time for society to seek an alternative to incarceration.

Kwame Apea

Kwame Apea is a member of the University of Maryland Class of 2016 and a Law Street Media Fellow for the Summer of 2015. Contact Kwame at staff@LawStreetMedia.com.

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It’s a night of fanfare, excitement, and glamour. It’s also a night to celebrate the best of the best in the filmmaking industry. But it’s not that simple, either. Without further ado, let’s open up the envelope and check out the top political moments of last night’s Oscars.

Patricia Arquette’s Call for Pay Equality

Patricia Arquette took home a big yet predictable win as Best Supporting Actress for her role in the film “Boyhood.” But in her acceptance speech she did something equally big–she used her platform to speak out for pay equality. Arquette said:

To every woman who gave birth to every taxpayer and citizen of this nation we have fought for everybody’s equal rights. It is our time to have wage equality once and for all and equal rights for women in the United States of America.

This speech, in addition to being awesome and dead-on, gave rise to quite possibly one of my favorite .gifs of all time–Meryl Streep and J-Lo cheering Arquette on.

If you say something that causes Meryl Streep and J-Lo to react like their team just won the Super Bowl, you know you’re doing something right.

Arquette’s call to action on pay equality came just a few months after the revelation that in some cases, women in blockbusters weren’t being paid as much as their male counterparts. This realization came out of of the much-publicized hack of Sony Entertainment emails. And speaking of Sony…

President of the Academy of Motion Picture Arts and Sciences Speaks Out Against Sony Hack

Cheryl Boone Isaacs, the President of the Academy of Motion Picture Arts and Sciences made a short speech last night, and much of her focus was on the importance of avoiding censorship, a clear reference to the Sony Hack and ensuing concerns about airing “The Interview.” Boone Isaacs exclaimed that as a film industry, everyone has “a responsibility to ensure that different opinions can be shared without fear of personal or professional attack. A responsibility to protect freedom of expression.”

“CitizenFour” Wins the Best Documentary Award

Although this wasn’t an obviously political moment, it definitely said something. “CitizenFour” chronicled the story of Edward Snowden and the leaks that he disclosed in 2013 before fleeing the country. Say what you want about Snowden, whether good or bad, it’s clear that his actions certainly changed the quality of American discourse about privacy and surveillance.

Director Laura Poitras accepted the award, lauding Snowden for his actions. She stated:

The disclosures that Edward Snowden reveals don’t only expose a threat to our privacy but to our democracy itself. When the most important decisions being made, affecting all of us, are made in secret, we lose our ability to check the powers that control. Thank you to Edward Snowden, for his courage, and for the many other whistleblowers. I share this with Glenn Greenwald and other journalists who are exposing truth.

Regardless of whether the “CitizenFour” choice was a political move, Poitras’ speech almost certainly was.

Sean Penn’s Greencard Comment

Of course, not all speeches and moments at the 2015 Oscars were political in a good way. Take Sean Penn’s asshole remark, for example. Penn was announcing the Oscar for Best Picture, which went to “Birdman” by Director Alejandro González Iñárritu, who is originally from Mexico. Sean Penn opened the envelope, looked at it, then said “Who gave this sonofabitch a Greencard” before announcing “Birdman” as the winner.

Now, Iñárritu has said he wasn’t offended by Penn’s joke; the two men have worked together in the past and are friends. That being said, the Oscars got a lot of flak this year for the vast majority of its nominees being very, very white. Penn’s joke made that whiteness even more noticeable, by pointing out that in many ways, Iñárritu is an “outsider” in comparison to the norm of the nominees this year. While Iñárritu may have found it funny, it was not the time or place to make such an off-color joke.

Graham Moore’s Beautiful Speech

Graham Moore wrote the adapted screenplay for “The Imitation Game,” and when he came up to accept his award gave an amazing acceptance speech. If you missed it, I’d highly recommend taking a look:

Mental health issues, particularly depression and suicide, are something that are often talked about in hushed whispers or not at all. For Moore, a now-Oscar winning writer, to get up and talk about his own struggles with mental health sends a powerful message to anyone who may be struggling.

Common and John Legend’s “Glory” Acceptance Speech

Recording artists Common and John Legend won the Oscar for their song “Glory” from the movie “Selma.” Given their moving acceptance speech at the Golden Globes, everyone was expecting the same at the Oscars, and they did not disappoint.

While receiving their Oscar, Legend pointed out two of the most maligned issues in America today: restrictions in voting rights and the high level of black men who are incarcerated.  Legend stated:

We live in the most incarcerated country in the world. There are more black men under correctional control today than there were under slavery in 1850.

The Oscars had many failings this year–the Academy’s approach to race being first and foremost. That being said, there were also a lot of great moments when those who work in the industry took matters into their own hands during acceptance speeches. Pay equality, mental health awareness, freedom of speech, and institutionalized racism are all pressing issues in this nation. The Oscar speeches won’t solve any of them, but I applaud all those who took a stand for being very public voices for truly noble reasons.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Early last week the Bureau of Justice Statistics revealed that for the first time since 1980 the federal prison population in the United States has dropped. In the last year alone, the federal prison population decreased by roughly 4,800. With new counts projecting the number of federal inmates to continue to fall by just over 2,000 in the next 12 months and by nearly 10,000 the year after, I ask the questions how, why, and what effect will this change have?

Over the past few years the Justice Department has revealed that crime rates have been dropping. Earlier this year, Attorney General Eric Holder aimed to change policies to reflect the belief that increasing the number of people behind bars does nothing to improve public safety. An example of such policies includes The Smarter Sentencing Act — which essentially seeks to eliminate mandatory minimum sentencing for defendants found guilty of first-time drug offenses — and the more recent Clemency Act, which seeks to release offenders from prison who were unfairly sentenced by mandatory sentencing guidelines. Holder has worked in the last year to reduce a prison population he says is costly and bloated. He was not wrong: in 2014 the country spent approximately $60 billion to incarcerate offenders.

Even as someone who has completed a masters in criminal justice, including a core required course in statistical management (which let’s be honest, was as horrific as it sounds), I still struggle to understand the relevance of the numbers the media is throwing at us. I agree that it is a real achievement that fewer people are being sentenced to time in prison, but I really want society to understand why it is such an achievement, and what this really means.

The decrease in prison population is certainly an incredible start to the potential success of community supervision and its benefits. The one thing these articles fail to point out is just how much further we have to go to protect us as a society, and those who enter into the system. You may be thinking at this point that I am out of my mind for considering the safety and well being of convicted offenders; however, the majority of individuals arrested and convicted are non-violent drug offenders. What the article praising the decrease in the prison population failed to acknowledge is that although certain convicted offenders will not be sentenced to prison, the conditions of their sentence lived in society carry a higher risk of future incarceration than if they were placed behind bars in the first place.

Just because these individuals are not physically locked behind bars does not mean they are not locked behind the transparent bars of social isolation. Rates of unemployment, difficulty securing housing, and loss of family are just some of the hurdles most of these individuals  contend with. Why? Because they have been stigmatized by society with their criminal label. Virtually everyone on community supervision is at risk of being detained or incarcerated upon failure to comply with the conditions of supervision. Would you be able to follow a list of conditions if you felt like no one supported you? In order to support alternatives to incarceration, we really need to welcome the culture of supervision and understand the positives it can bring us. Not only will we be spending less money on the safekeeping of these individuals, but intervention and supervision can be accurately given to each offender to prevent re-offenses, interrupt the cycle of crime in families, and shake up the social disorganization within communities.

Regardless of whether you believe crime is a choice, crime is inherited, or crime is learned, the solid facts are that crime happens. By locking individuals up without any guidance, or even attempting to work on understanding the cause, the likelihood of reoffending is just as high if not worse than it was before that person was put in jail. Legislators clearly have been able to understand the reality that sending people to prison does nothing for public safety, so now it is time they invest money into supervision agencies to aid offenders in the right way. In order for this to happen, well-trained staff, evidence-based programs, and support from others is essential.

It is essential we maintain a safe environment for everyone in our communities. The notable decrease in the overall American incarceration and crime rates is something that hasn’t happened in more than 40 years. This hopefully marks the start of a revolutionary change for the U.S. criminal justice system.

—

Hannah Kaye (@HannahSKaye) is originally from London, now living in New York. Recently graduated with an MA in criminal justice from John Jay College. Strong contenders for things she is most passionate about are bagels and cupcakes.

Featured image courtesy of [Viewminder via Flickr]

Hannah Kaye

Hannah Kaye is originally from London, now living in New York. Recently graduated with an MA in criminal justice from John Jay College. Strong contenders for things she is most passionate about are bagels and cupcakes. Contact Hannah at staff@LawStreetMedia.com.

The post Incarceration Figures Drop, But Community Support is Essential to Public Safety appeared first on Law Street.

As a part of the “war on drugs,” a law was passed in 1986 that criminalized the use of illegal substances. The two substances, powder and crack cocaine, were criminalized differently, leading to inconsistent laws and a notable lack of fairness in sentencing. In 2010, the Fair Sentencing Act was passed in an effort to remedy this disparity. Now, four years down the road, it’s important to look back and evaluate its impact. Read on to learn about the law, its supporters and dissidents, and results.

The Anti-Drug Abuse Act of 1986

The Anti-Drug Abuse Act was passed during the heart of the war on drugs. It was the first big piece of legislation, and it included mandatory minimum sentences for the possession of certain drugs.

Powder cocaine is white, and true to its name, powdery. There are many ways in which to consume cocaine, but the most well known is by “snorting” it, or inhaling through the nose. Under the Anti-Drug Abuse Act of 1986, if you were found with at least 500 grams of cocaine, the minimum mandated sentence was five years without parole. Crack cocaine is smoked, and is created when cocaine, water, and baking soda are combined. Under the Anti-Drug Abuse Act of 1986, if you were found with just five grams of crack cocaine, the minimum mandated sentence was also five years without parole.

That means that crack cocaine was criminalized at a 100:1 ratio in comparison to powder cocaine. In addition to being unfair, the standards have been criticized as inherently racist. Watch the video below for more information this.

Fair Sentencing Act of 2010

The Fair Sentencing Act (FSA), signed by President Obama, was passed by the 111th United States Congress. The law’s primary provisions reduced disparities in the differences between the amount of powder cocaine and crack cocaine needed to trigger federal penalties under the law. It also eliminated the mandatory five-year minimum sentencing provision required under the previous law. The FSA made fundamental changes to U.S. drug law, including the removal of the five-year mandatory minimum sentence for first-time possession of crack cocaine, an increase in the amount of crack cocaine that is required for a federal mandatory minimum prison term to apply, and the increase of financial penalties for trafficking a controlled substance. Sentencing judges are allowed to consider violence and other aggravating factors.

The FSA requires the U.S. Sentencing Commission to take specific measures regarding sentencing. These include raising sentencing guidelines for those convicted of violence in relation to a drug offense, include aggravating and mitigating factors in its consideration of punishments for drug offenses, and present a report to Congress detailing the FSA’s impact on sentencing for drug offenses.

What were the arguments in favor of the FSA?

Proponents of the FSA argue that studies show that crack cocaine and powder cocaine are equally addictive and the government never had any scientific basis for believing otherwise. Moreover, the previous law created significantly disproportionate sentencing rules for drug offenders.  For example, under the old law a person found possessing five grams of crack cocaine was given the same punishment as a person possessing 500 grams of powder cocaine. Also, ten grams of crack cocaine was enough for a 10-year minimum sentence, but 1,000 grams of powder cocaine were required for the same sentence.

That disparity evinces a probable racial bias in the old law. In 1995, the U.S. Sentencing Commission stated that the law created “racial imbalance in federal prisons and led to more severe sentences for low-level crack dealers than for wholesale suppliers of powder cocaine. … As a result, thousands of people — mostly African Americans — have received disproportionately harsh prison sentences.” Crack Cocaine users in the U.S. are composed of 52 percent whites and 38 percent blacks, yet 88 percent of the sentences for crack cocaine-related offenses were imposed on blacks while only 4 percent were imposed on whites. The DEA Administrator under the Bush administration stated that because of the disparity “the credibility of our entire drug enforcement system is weakened.”

What were the arguments against the FSA?

Opponents of the FSA argue that the new law may revive the dangers that the old law was intended to prevent. The severe sentences under the old law were justified by the facts that trafficking and distribution of crack cocaine more often involves violence and danger to the community than what generally comes with powder cocaine and the offenders more often have violent criminal histories.

Law Enforcement Organizations have also opposed the act, arguing that more severe sentences are justified because crack is often trafficked with weapons. According to the U.S. Sentencing Commission, 29 percent of all crack cases from October 1, 2008 through September 30, 2009 involved a weapon, compared to only 16 percent for powder cocaine. These police organizations advocate raising the penalties for possessing powder cocaine rather than lowering the penalties for crack cocaine carriers. Since crack cocaine distribution is generally conducted with more violence and risk to the public than powder cocaine distribution, it makes sense that the law treats participation in a more dangerous criminal culture as a more serious crime.

What has been the reaction to the FSA?

The Fair Sentencing Act was a step in a good direction. It changed the much maligned crack cocaine to powder cocaine possession ration from 100:1 to 18:1. While some advocates call for a complete eradication of any discrepancies in sentencing, others point out that crack is known to be slightly more addictive, and is more likely to be involved with respect to violent crimes.

There’s also an argument about the retroactivity of this law. Retroactivity essentially means that the FSA would be applied to the thousands who are still in jail under the 1986 law. This could lead to reduced sentences for those prisoners. In 2013, the Sixth Circuit Court of Appeals ruled that the FSA is in fact retroactive; however, the government asked for an en banc review, which means that the entire panel, not just the individual judges involved in that case, review the possibility of retroactivity. In the en banc review, the Sixth Circuit Court of Appeals panel reversed the original decision. At this point, the FSA is not applied retroactively.

The FSA has made headway. Around the time of its passage, it was estimated that ten years down the road, the federal prison population will decline by about 4,000 people. There’s still work to be done to make sure that everyone receives a fair sentence, based on his or her crime committed and not on arbitrary standards, but the FSA is absolutely a step in the right direction.

 Resources

Primary

U.S. Congress: Fair Sentencing Act of 2010

United States Sentencing Commission:
Sentencing Guidelines for United States Courts

United States Senate Sentencing Commission: Fair Sentencing Act Amendment

Additional 

Ron Paul: Statement on the Fair Sentencing Act

ACLU: Fair Sentencing Act

Sojourners: The Fair Sentencing Act: A (Small) Step Towards Making Things Right

Sentencing Law and Policy: Fascination and frustration with “finality fixation” in en banc Sixth Circuit Blewett arguments

Madame Noir: How the Fair Sentencing Act Is Still Not So Fair

Brennan Center: Smarter Sentencing Act of 2013

Progessive: Drug sentencing reform doesn’t go far enough

Youth Today: Congress Passes Law to Reduce Crack/Cocaine Sentencing Disparities

Nation: Beyond the Fair Sentencing Act

Huffington Post: Fair Sentencing Act

Mic: Fair Sentencing Act: Are Crack Cocaine Laws Intentionally Racist?

FAMM: Crack Cocaine Mandatory Minimum Sentences

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post The Fair Sentencing Act Aims to Align Drug Sentencing Disparities appeared first on Law Street.

Trying to get by without a reliable place to stay is difficult. But it becomes nearly impossible when trying to live in a city where it is illegal to sleep in parks, to store belongings, or to stand outside buildings. This is exactly what homeless people are up against in many cities across America. Cities are increasingly turning to laws that criminalize homeless populations by outlawing fundamental human behaviors. With laws banning sleeping and camping in public, where should the homeless turn?

What are the statistics on homelessness?

Homelessness has been a problem for decades, but the root causes of the issue are complex. Homelessness is incredibly difficult to measure, especially since many people are forced into homelessness for only a temporary period of time. According to a one-night head count by the U.S. Department of Housing and Urban Development, more than 610,000 Americans were homeless in January 2013. Sixty-five percent of the nation’s homeless were staying in shelters that night. This means more than one-third were living in unsheltered locations — under bridges, in cars, parks, or abandoned buildings. Nearly a quarter of the homeless were children under the age of 18.

What have cities been doing?

Cities are increasingly passing laws that essentially make it illegal to be homeless. Most of these laws are designed for safety reasons rather than to put more homeless people in jail, but the effects can still be harmful. Numerous U.S. cities have public designs hostile to the homeless, such as benches with a mysterious third bar in the middle to prevent lying down and sleeping. Most cities have unevenly enforced loitering laws as well as laws prohibiting begging.

The National Law Center on Homelessness and Poverty released a report on July 16, 2014, tracking the laws of 187 American. Some of its findings:

• 57 percent of cities prohibit camping in particular public places — “camping” encompasses a wide array of living arrangements
• 27 percent of cities prohibit sleeping in particular public places and 18 percent of cities impose a city-wide ban on sleeping in public
• 76 percent of cities prohibit begging in particular public places
• 65 percent of cities prohibit loitering in specific public places
• 9 percent of cities prohibit sharing food with homeless people
• 74 percent of homeless people do not know a place where it is safe and legal for them to sleep

The problem is that these laws have increased in recent years. Since 2011,

• Citywide bans on camping in public have increased by 60 percent.
• Citywide bans on loitering, loafing, and vagrancy have increased by 35 percent.
• Citywide bans on sitting or lying down in particular public places have increased by 43 percent.
• Bans on sleeping in vehicles have increased by 119 percent.

Watch the video below for more information on the measures taken against the homeless in Clearwater, Florida:

Are these laws constitutional?

City bans targeting the homeless population raise a number of legal questions. While the laws are often ruled unconstitutional, they still thrive in most U.S. cities. Most people take issue with the fact that these laws are discriminatory in targeting the homeless population. Some argue that an activity like begging should be protected as free speech. A similar argument is made that the homeless should be afforded freedom from cruel and unusual punishment and should have the right to due process of law. The U.N. Human Rights Committee found criminalization of homelessness violated the International Covenant on Civil and Political Rights. Other significant rulings:

• In April 2006, the Ninth Circuit Court of Appeals ruled that criminalizing behaviors and acts integral to being homeless was a violation of the 8th and 14th Amendments; however, the opinion was vacated when the two parties settled out of court.
• In August 2012, a federal judge in Philadelphia ruled that laws that prohibited serving food outside to the homeless were unconstitutional.
• On June 19, 2014, a federal appeals court cited issues of discrimination in striking down a Los Angeles law that banned people from living out of their cars.

What are the effects of these laws?

Typically the homeless are encouraged to stay in shelters until they can find affordable housing of their own, but oftentimes it is not that easy. Consider a city like Santa Cruz, California, where 83 percent of homeless people are without housing and shelter options, yet the homeless cannot lie down in public or sleep in vehicles. Or consider El Cajon, California, where 52 percent of homeless people have no access to a shelter, but sleeping in public, camping in public, and begging are criminalized.

Watch the video below to learn more about a law banning homelessness in Columbia, North Carolina:

Incarceration

Violators of these rules face fines or incarceration. As many homeless people cannot afford fines, they end up spending time in jail. With no permanent address, no regular transportation access, no place to store personal records, and few to no financial resources, the homeless targeted for criminal behavior have difficulty paying fines. If they can’t pay fines they often cannot get probation. This means they are incarcerated more often and for longer periods of time. For the homeless, getting into shelters and finding affordable housing is already difficult. But doing so after a previous arrest becomes nearly impossible.

Suspended Benefits

The homeless are typically eligible for a variety of beneficial federal programs, such as Supplemental Security Income (SSI), Social Security Disability Insurance (SSD), and SNAP (food stamps). Many homeless people are unaware of these programs. Since most of the homeless lack an address and application documentation, they have difficulty applying. SNAP has special procedures that give greater assistance to the homeless, such as providing the, with a representative and mailing benefits to homeless shelters. Most cities recognize the obstacles the homeless face in applying for federal benefits and employ outreach teams to connect homeless people to benefits and services. For example, Denver’s “Road Home” plan began in 2005 with the goal of helping homeless people with disabilities. Denver organized all the existing outreach programs in the city and added 20 more outreach workers as well as a program coordinator. In the first 3 years, the program helped 2,000 people in Denver access public benefits and services. Another program in Portland set up training to teach all homeless case workers what major benefit programs are available and how the homeless can apply.

One big problem is that having a criminal record makes people ineligible for certain benefits, such as federal housing subsidies. When disabled individuals are incarcerated, their SSI is suspended. If they are incarcerated for more than a year, SSI benefits are terminated and the person must then submit a new application. The process could take months or even years, meaning an increased chance for homelessness in the meantime.

High Cost

Recent studies show that laws targeting the homeless are not always cost-effective. The Utah Housing and Community Development Division reported that the annual cost of emergency room visits and jail stays for the average homeless person was $16,670. Providing someone an apartment and social worker would only cost $11,000.

A 2013 analysis by the University of New Mexico’s Institute for Social Research examined the costs of providing immediate, permanent, supportive housing to the homeless rather than the more typical transitional housing. Albuquerque’s “Heading Home” Initiative made extensive use of community partnerships to coordinate housing and services. Overall, the study found that housing the homeless is 31 percent cheaper than keeping them homeless, mainly because housed individuals use emergency services less frequently. Their research showed that simply by providing permanent housing, Albuquerque reduced spending on homeless-related jail costs by 64 percent. The costs of emergency room visits also declined 13 percent, while spending on mental health visits increased 34 percent.

Do these laws help protect the homeless?

Very rarely are cities explicitly aiming to make the lives of the homeless even harder by instituting these laws. Many cities see these laws as a way to ensure public safety as well as the safety of the homeless. For instance, laws prohibiting sharing food with the homeless are aimed at protecting the homeless from bad food. Food given illegally could be made with questionable food safety practices or could come from someone with more nefarious intent like poisoning the food. Other cities worry about the effects of public feedings. For instance, a church group may set up in a park next to a school, which would leave many parents upset over the safety of their children. Watch for rationale behind feeding laws below:

Laws outlawing public camping are often a way for the city to push the homeless to stay in safer shelters, especially in dangerously cold weather. Staying in a shelter generally keeps the homeless safe from people who may otherwise harm them on the streets. Shelters can also help cities connect the homeless to other beneficial social service programs. Officials also say these laws help to encourage better pubic hygiene and safety. Other laws target panhandling. Police object to panhandling since it is often done in high-volume, potentially dangerous areas, such as a highway median.

So why can’t the homeless find a place to stay?

More than 12.8 percent of the nation’s supply of low income housing has been permanently lost since 2001. This is largely due to a steady decrease in funding for federal subsidies for standardized housing since the 1970s. There are fewer emergency shelter beds than there are homeless people. The number of shelters in the United States rises each year, but the increased supply of beds does not always correspond to the areas of highest demand. In certain areas where there is a lack of affordable housing, the shelters still do not provide enough beds. Further, waiting lists for subsidized housing in most areas are incredibly long. The city of Los Angeles has only 11,933 shelter beds for a homeless population of 53,798. If cities cannot provide adequate shelter beds, there is no place for the homeless to go but the streets.

Typically shelters are run by non-profit organizations associated with church groups or the federal or state government. Numerous national organizations, such as Salvation Army, United Way, and the National Alliance to End Homelessness, aid in the upkeep of homeless shelters. Most shelters require residents to exit in the morning and go somewhere else for the day before returning at night for a meal and to sleep. Shelters try to offer a variety of services, including job training and rehabilitation programs, but some are criticized for being nothing more than holding facilities. One shelter in Washington, D.C. in particular has dealt with corrupt workers preying on the homeless residents as well as a decaying building, contagious infections, and hazardous bug infestations.

Another significant obstacle is how to find housing for vulnerable populations like the previously incarcerated, the recently hospitalized, and veterans. Once released from jail or prison, many have no place to turn and no money to pay for housing. Those released from hospitals are also more likely to suffer from homelessness and even mental illness.

Housing First models have grown in popularity in recent years as part of the movement to find new ways to help the homeless. One of the first Housing First models was launched in Los Angeles in 1998 by the non-profit PATH Beyond Shelter. The success of the policy led to its spread to a number of U.S. cities. Rather than moving the homeless through different levels of housing, Housing First models move the homeless immediately from the streets or a shelter into their own apartment. The idea is that once housing is obtained, other issues like mental health or addiction can more effectively be addressed. By using a Housing First model, Phoenix became the first city to successfully house all of its chronically homeless veterans.

Watch the video below for more information on the Housing First program:

Libraries and the Homeless

With the homeless finding it increasingly difficult to find someplace to sit outside, libraries are a prime spot to spend their days. As social safety nets shrink, libraries have become more vital than ever to homeless populations. Libraries are free, centrally located, provide numerous books and computers, and allow the homeless to escape from snow or scorching temperatures. Increasingly, libraries have added homeless outreach to their array of programs.

Being a de facto gathering place for homeless populations can often deter use by other patrons. Striking the balance between making the homeless feel welcome and making other visitors feel comfortable is tricky. Naturally libraries deal with complaints regarding homeless people being loud, unclean, mentally ill, monopolizing computer time, and bathing in restrooms. Some libraries institute their own rules to mitigate these problems. For example, rules in Washington, D.C. prohibit alcohol, bare feet, carrying more than two bags, sleeping, or an odor that can be detected six feet away.

Watch the video below to see how a library in Burlington, Vermont, deals with the homeless:

Libraries have not turned a blind eye to the needs of the homeless. In response to problems with the homeless population, the city of San Francisco hired a social worker for its main library. The social worker is aided by five peer counselors, all of whom are formerly homeless. The library even implemented a 12-week “vocational rehabilitation” program. Graduates of the program are then hired to work in the system. Other libraries in Washington, D.C. and Philadelphia have since followed suit to hire social workers.

In Greensboro, North Carolina, libraries offer meals, haircuts, blood pressure screening, and job counseling. Libraries in San Jose, California bring library programs, such as computer classes, to homeless shelters. The central library in Philadelphia even features a cafe staffed by the homeless, who then use the job skills gained to secure other employment. The American Library Association calls for even more programming targeting the homeless, recognizing that libraries should provide training to staff and coordinate programs and activities to benefit that population.

Cities need more affordable housing to help the homeless. Ideally they should seek to confront problems of homelessness and provide solutions rather than criminalize homeless behavior. Naturally many communities do not want to have to deal with the homeless in public areas, but criminalization of homeless behavior is costly, unconstitutional, and hinders a person’s future ability to secure a permanent place to stay.

Resources

Primary

HUD: 2013 Annual Homelessness Assessment Report to Congress

 Additional

No Safe Place: The Criminalization of Homelessness in U.S. Cities

Reuters: U.S. Libraries Become Front Line in Fight Against Homelessness

Huffington Post: More Cities are Basically Making it Illegal to be Homeless

The New York Times: Shunting the Homeless from Sight

USA Today: More Cities Pass Laws that Hurt the Homeless

Wall Street Journal: A Crowdfunding App for the Homeless

Blaze: Top 10 Anti-Homeless Measures Used in the United States

American Library Association: Reducing Homelessness Through Library Engagement

NPR: Urban Libraries Become De Facto Homeless Shelters

MSN: Court Overturns Los Angeles Ban on Living in Cars

ALA Library: Services for the Poor

Arizona Central: Success in Housing for Homeless Veterans in Phoenix

Harvard Civil Rights/Civil Liberties Law Review: Jones v. City of Los Angeles: A Moral Response

NPR: With A Series of Small Bans, Cities Turn Homelessness into a Crime

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

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