Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation

May 15, 2015

320823424_e373fdd313_z.jpgPolice departments around the country are using a device known as a "stingray," which allows them to track suspects by their cell phone signals. Stingrays have become a cause for concern for many people, not only because police are apparently using them to track specific individuals without obtaining a warrant, but also because many departments seem to be going to great lengths to keep information away from the public. This reportedly includes dismissal of charges merely to avoid disclosing details about stingray use. Numerous lawsuits are either challenging stingray use or seeking information under state open records laws. A judge in New York ordered police to produce stingray records, rejecting their arguments for keeping them secret. In Texas, a bill is currently pending in the Legislature that would require a warrant for stingray use.

Stingrays allow police to intercept cell phone communications by mimicking a cell phone tower. The phone automatically sends identifying information to the stingray, just as it would do to any cell tower. The telecommunications companies that operate the cell tower network have vast stores of data regarding cell phone locations. Courts are split on the question of whether police must have a warrant to obtain this data from cell tower operators. With stingray technology, police can track a suspect in real time, while data obtained from cell towers only provides location data after the fact.

A lawsuit brought under New York's open records law has reportedly revealed a deal between the FBI and the Erie County Sheriff's Office in New York, in which the FBI told the sheriff's office to drop certain criminal cases rather than reveal stingray-related information. A New York judge described the deal in an order directing the sheriff's office to produce such records. N.Y. Civil Liberties Union v. Erie Co. Sheriff's Office, No. 2014/000206, judgment (N.Y. Sup. Ct., Erie Co., Mar. 17, 2015).

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Baltimore Protests Raise Questions About Excessive Bail, Eighth Amendment Protections

May 4, 2015

DOWNTOWN_BMORE_1.jpgThe city of Baltimore, Maryland experienced a significant upheaval during the last week of April 2015, and continuing into early May, as residents protested mistreatment by the city's police department. The incident that sparked the protests, the death of 25 year-old Freddie Gray in police custody, resulted in criminal charges against six police officers on May 1. During the week leading up to the announcement of the criminal charges, however, violence broke out on multiple occasions, resulting in property damage, clashes between protesters and police, and hundreds of arrests. Many arrestees found themselves subject to substantially large bail amounts, which raises the question of how much bail, given the Eighth Amendment's prohibition on "excessive bail," is too much. That question, unfortunately, has no simple answer.

One story that gained national attention involved an 18-year-old man seen in photographs smashing the windows and windshield of a Baltimore police car. At the urging of this mother and stepfather, he surrendered to police voluntarily, but he was held on $500,000 bail. According to local media, his family cannot possibly pay this amount. The man is charged with eight offenses, all misdemeanors, including malicious destruction of property and rioting. Malicious destruction of property carries a maximum penalty of three years' imprisonment under Maryland law if the damage is at least $500. Md. Crim. Law Code § 6-301(b). The severity of a charged offense is one of the main factors in determining bail, so the "rioting" charge may be key to understanding the bail amount.

Most states have a statute specifically defining the criminal offense of rioting. See Tex. Pen. Code § 42.02. Maryland, however, uses the common law definition of rioting, which involves three or more people engaged in an unlawful assembly "to carry out a common purpose in such violent or turbulent manner as to terrify others." Schlamp v. Maryland, 891 A.2d 327, 334 (Md. Ct. App. 2006), quoting Cohen v. Maryland, 195 A. 532, 534 (Md. Ct. App. 1937). Although the offense is categorized as a misdemeanor, the maximum penalty under state sentencing guidelines is life imprisonment. Md. Sentencing Guidelines Manual v. 7.0, App. A at 18 (Feb. 1, 2015) (PDF file).

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Can Text Messages Be Used as Evidence of Guilt In Texas Criminal Cases?

April 27, 2015

speech-35342_640.pngText messages sent from mobile phones have become a common method of communication in recent years, but as with most new technologies, our justice system has not fully caught up. Courts are still considering various questions regarding when prosecutors may use text messages as evidence of guilt in a criminal case. This includes questions of authentication, such as whether the state must prove that a defendant actually wrote a specific text message, or merely that a witness received the text and believed it to be from the defendant. Courts in Texas and other states have reached different conclusions on this issue in recent months.

The Texas Court of Criminal Appeals held that, once the state has established that the text messages exist on a witness' phone, it is up to the jury to assess whether the messages are authentic. Butler v. State, No. PD-0456-14, slip op. (Tex. Crim. App., Apr. 22, 2015). This case involved a kidnapping charge, and the state called the kidnapping victim to testify about text messages received from the defendant. The Court of Appeals held that the state failed to authenticate text messages allegedly sent by the defendant and reversed the conviction.

The Court of Criminal Appeals reinstated the conviction, noting that authentication generally only requires "evidence sufficient to support a finding that the item is what the proponent claims it is." Id. at 7, quoting Tex. R. Evid. 901(a). The witness' testimony, the court held, was sufficient, and the rest was within the discretion of a reasonable jury.

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Proposed Bill in Texas Legislature Would Decriminalize Truancy, Refer Cases to Civil Juvenile Court

April 21, 2015

Ralph_Hedley_The_truant's_log_1899.jpgA bill that would remove criminal penalties for failure to attend school, commonly known as truancy, passed the Texas Senate in mid-April 2015 and now awaits action in the state House of Representatives. The juvenile criminal justice system deals with numerous acts that would not be considered illegal or unlawful for adults, such as truancy or possession of alcohol, and while this may not always seem like the case, the system is intended to focus on rehabilitation rather than punishment. Texas' system has come under substantial criticism, as well as an investigation by the U.S. Department of Justice (DOJ), for its treatment of truancy as a criminal offense. The bill, SB 106, has substantial support, but opponents have claimed that it is not necessary because the resources it seeks to create are already available.

Under current Texas law, most children between the ages of six and 18 are required to attend school unless they are subject to an exemption. Tex. Educ. Code §§ 25.085, 25.086. If a child who is at least 12 years old misses 10 or more days in any six-month period during a single school year, or three or more days within a period of four weeks, the child has committed a Class C misdemeanor, punishable by a fine of up to $500. Tex. Educ. Code § 25.094, Tex Pen. Code § 12.23.

The offense of truancy may be prosecuted outside of the juvenile court system. A judge may order a child found guilty of truancy to attend school and other special programs, perform community service, and attend tutoring sessions. Tex. Code of Crim. P. Art. 45.054. The court may order the child's parents or guardians to "attend a class for students at risk of dropping out of school." Id. at Art. 45.054(a)(3). Failure to abide by a court's orders may result in a contempt finding, which could include jail time. Tex. Educ. Code § 25.094(d), Tex. Code Crim. P. Art. 45.050.

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Legal Status of Marijuana Under Review by Texas Legislature

April 10, 2015

Map-of-US-state-cannabis-laws.svg.pngThe legal status of marijuana has gone through major changes in recent years. California passed a law permitting medical marijuana use nearly 20 years ago, followed by several other states. In the past two years, however, a number of states have either decriminalized marijuana or outright legalized it for both medical and recreational use. A bill to repeal criminal marijuana statutes is currently pending in the Texas House of Representatives, although its future is uncertain. Regardless of what state legislatures do, marijuana remains a Schedule I controlled substance, the highest level of restriction under federal law. A federal judge in California, however, is currently considering an argument that marijuana's Schedule I designation is unconstitutional.

Marijuana is currently a controlled substance under both Texas and federal law. Texas prohibits the delivery of marijuana, with the level of offense ranging from a Class B misdemeanor for one-fourth of an ounce or less with no intent to sell, to a first-degree felony punishable by life imprisonment for more than 2,000 pounds. Tex. Health & Safety Code § 481.120. Possession of marijuana is a Class B misdemeanor for two ounces or less, increasing to life imprisonment for amounts over 2,000 pounds. Tex. Health & Safety Code § 481.121.

Federal law defines a Schedule I controlled substance as one with a "high potential for abuse," "no currently accepted medical use in treatment in the United States," and a "lack of accepted safety" for use. 21 U.S.C. § 812(b)(1). Marijuana is listed as a Schedule I controlled substance, while heroin, cocaine, and methamphetamine, to name but a few, are Schedule II drugs. Penalties for marijuana distribution may include five to 40 years in prison for 100 kilograms or more, or 100 marijuana plants, 21 U.S.C. § 841(b)(1)(B)(vii); or ten years to life for one thousand kilograms or plants, 21 U.S.C. § 841(b)(1)(A)(vii). Distribution of smaller amounts carries lesser penalties. 21 U.S.C. §§ 841(b)(1)(D), 844.

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Former Virginia Governor Sentenced to Two Years in Prison in Corruption Case After Prosecutors Recommend Ten Years

April 8, 2015

6902576564_8844bbee7e_z.jpgA federal judge sentenced former Virginia Governor Robert F. McDonnell to 24 months in prison in early January 2015, after a jury convicted him on multiple counts alleging official corruption. United States v. McDonnell, No. 3:14-cr-00012, am. judgment (E.D. Va., Jan. 13, 2015). The defendant was charged in connection with his and his wife's alleged acceptance of gifts and other items of value from a businessman while he was in office. After the jury rendered a guilty verdict on all but two counts, the federal government recommended a prison sentence of at least 10 years under the Federal Sentencing Guidelines (FSG).

Prosecutors charged the defendant and his wife in January 2014 with multiple counts, including honest-services wire fraud, obtaining property under color of official right, and false statements. They alleged that the defendants accepted approximately $177,000 in gifts and loans from a Richmond businessman in exchange for using the governor's office to help the businessman's dietary-supplement company. Prior to the indictment, the former governor had reportedly rejected a plea deal for one felony charge of making a false statement on a loan document, which would have carried a maximum of three years in prison, and no charges for his wife. The case went to trial against both defendants in July 2014 and lasted five weeks.

In early September 2014, the jury convicted the defendant of 11 charges: one count of conspiracy to commit honest-services wire fraud, 18 U.S.C. § 1349; three counts of honest-services wire fraud, 18 U.S.C. § 1343; one count of conspiracy to obtain property under color of official right, 18 U.S.C. § 1951; and six counts of obtaining property under color of official right. It acquitted him on two counts of false statements, 18 U.S.C. § 1014. The defendant's wife was convicted on eight counts.

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SEC Sanctions Two American Businessmen for Bribery of Foreign Officials

April 1, 2015

dubai-256585_640.jpegThe Securities and Exchange Commission (SEC), the agency empowered to enforce federal securities laws and regulations, imposed administrative sanctions on two American businessmen for violations of the Foreign Corrupt Practices Act (FCPA), 15 U.S.C. § 78dd-1. The agency accepted offers of settlement from both respondents, resulting in civil monetary penalties and a cease-and-desist order. Matter of Timms, et al, Release No. 73616, File No. 3-16281, order (PDF file) (SEC, Nov. 17, 2014).

Administrative sanctions are similar to criminal penalties, although they generally have different procedural requirements and a much lower burden of proof. In a criminal proceeding, the state must prove that a defendant is guilty of all of the statutory elements of an offense beyond a reasonable doubt. Administrative sanction proceedings are conducted by a government agency or administrative law judge. The agency typically must establish violations of applicable laws or regulations by a preponderance of evidence. Penalties often consist of monetary fines, license suspension, and injunctions.

During the relevant time period, the two respondents were employed by an American defense contractor in its office in Dubai, United Arab Emirates. They both worked as sales executives, with responsibility for obtaining contracts to sell binoculars and security cameras to Saudi Arabia's Ministry of the Interior (MOI). As a condition for a binoculars contract, the respondents' employer was to conduct a "factory acceptance test" at a facility in Massachusetts in July 2009. The respondents arranged for MOI officials to travel to the U.S. for the test. According to the SEC, this trip included a 20-day "world tour" with stops in Casablanca, Paris, New York City, and Dubai, all at the contractor's expense. The respondents reportedly also presented five MOI officials with $1,425 watches.

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Federal Appellate Court Overturns Insider Trading Convictions

March 31, 2015

Bulle_und_Bär_Frankfurt.jpgA federal appellate court issued a ruling at the end of 2014 that could have a far-reaching impact on criminal prosecutions in the financial sector. The court overturned the convictions of two hedge fund portfolio managers for insider trading, finding that the government failed to establish several key elements at trial. United States v. Newman, et al, Nos. 13-1837-cr (L), 13-1917-cr (con), slip op. (2d Cir., Dec. 10, 2014). The federal criminal offense of insider trading, the court held, requires proof beyond a reasonable doubt that a tippee (1) knowingly received confidential information from an insider and (2) knew that the insider received a personal benefit in exchange for the disclosure. The court found that prosecutors failed to prove either element with regard to the defendants.

The term "insider trading" generally refers to trading securities, such as corporate stocks and bonds, based on information that is not available to the general public. It does not always describe illegal activity, since corporate officers and other insiders may legally trade their own securities, provided they report those trades to the Securities and Exchange Commission (SEC). Illegal insider trading, according to the SEC's definition, involves the use of information obtained in violation of an insider's fiduciary duty to keep that information confidential. The burden of proof on the government is quite high in these cases.

In Newman, prosecutors alleged that insiders at the technology companies Dell and NVIDIA disclosed confidential information to a group of financial analysts in 2008, before either company released the information in its periodic earnings announcements. The analysts passed the information on to their portfolio managers, including the two defendants, who executed trades in the companies' stock that yielded profits of about $4 million and $68 million for the defendants' funds.

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Owner of Vocational College Chain Indicted, Sued for Alleged Fraud

March 30, 2015

FAFSA_screenshot_using_camera.jpgFederal prosecutors indicted the owner of a now-closed chain of colleges for conspiracy to defraud the federal government and theft of government property. United States v. Amor, et al ("Amor I"), No. 1:14-cr-20750, indictment (S.D. Fla., Sep. 30, 2014). The government alleges that the defendants operated the schools primarily as a means of defrauding federal student aid programs, rather than educating students and preparing them for careers. The principal owner also faces a civil lawsuit under the False Claims Act (FCA), originally filed by a former admissions employee and now joined by the government and the state of Florida. United States ex rel Peña v. Amor, et al ("Amor II"), No. 1:12-cv-21431, complaint in intervention (S.D. Fla., Dec. 2, 2014).

The defendants operated FastTrain College, a for-profit college with seven campuses in the state of Florida. According to the indictment, it "awarded career diplomas and industry certifications" in various medical and computer fields. Amor I at 1. The school received approval from the U.S. Department of Education (DOE) to receive loans from the Federal Direct Loan Program and grants from the Federal Pell Grant Program. Both programs are administered by the DOE's Office of Federal Student Aid. To receive either type of financial aid, students complete the Free Application for Federal Student Aid (FAFSA).

The federal government alleges that the defendants recruited students who did not have high school diplomas or GEDs, and therefore did not meet the qualifications for federal student aid, to enroll in the school. Efforts to attract students allegedly included hiring exotic dancers as recruiters. In some cases, the government claims, the defendants falsely represented that prospective students could "obtain a high school diploma for a fee." Id. at 8. They allegedly caused about 1,300 students to submit FAFSAs falsely stating that they had graduated high school. This allegedly resulted in the receipt of more than $6.5 million in Direct Loans and Pell Grants.

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Federal Prosecutors Charge Two Individuals Under 18th Century Statute in Connection with Attempted Coup in African Nation

March 21, 2015

505px-Gambia-map-political.jpgTwo United States citizens were charged by federal prosecutors in connection with an attempted coup in The Gambia, a small nation in West Africa. According to the criminal complaint, one defendant directly participated in the attempt to overthrow The Gambia's government, while the other was an alleged leader and financier of the plot. United States v. Njie, et al, No. 0:15-mj-00001-TNL-1, complaint (D. Minn., Jan. 5, 2015). Both defendants were charged with conspiracy to violate the Neutrality Act, a law originally passed in 1794 that prohibits Americans from preparing or financing an attack on a country with which the United States is at peace. 18 U.S.C. § 960. At least one of the defendants was also charged with conspiracy to violate arms export laws.

The Gambia is a small West African country located on the Atlantic coast. Its territory consists almost entirely of land on either side of its namesake, the Gambia River. Aside from its coastline, the country is bordered on all sides by Senegal. It gained independence from the United Kingdom in 1965, and has been ruled by President Yahya Jammeh since 1994, when he took power in a military coup. The Gambia and the United States have friendly relations, although the U.S. Department of State has expressed concerns over free and fair elections and alleged human rights abuses. Human rights activists have described The Gambia as one of the most authoritarian nations in Africa.

On December 30, 2014, gunfire reportedly broke out near the Gambian capital city, Banjul. President Jammeh was out of the country at the time. The U.S. and others have claimed that this was an attempted coup aimed at overthrowing Jammeh, with ten to twelve people entering the country expecting others to join them in a revolt. When this failed to happen, one of the defendants, Papa Faal, reportedly fled to Senegal and turned himself in to authorities at the U.S. embassy. He told the FBI that the other defendant, Cherno Njie, financed their activities and intended to be installed as the new president after the coup. Authorities arrested Njie at the airport upon his arrival in the U.S.

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Former Coal Company CEO Indicted for Conspiracy, Other Charges in Connection with 2010 Mine Disaster

March 5, 2015

Coal_cars_NARA_-_540955.jpgFederal prosecutors indicted the former CEO and Chairman of the Board of Directors of a coal company in connection with a 2010 coal mine explosion. United States v. Blankenship, No. 5:14-cr-00244, indictment (S.D.W.V., Nov. 13, 2014). The Mine Safety and Health Administration (MSHA) fined Massey Energy Co. nearly $11 million in 2011 for hundreds of safety violations at the Upper Big Branch (UBB) mine in Montcoal, West Virginia. The defendant in the present case was Massey's CEO and Chairman at the time of the explosion. Prosecutors allege that he knew or should have known about numerous violations and "had the ability to prevent most of" them, but instead "fostered and participated in an understanding that perpetuated UBB's practice of routine safety violations." Id. at 1.

At about 3:27 p.m. on April 5, 2010, an explosion occurred in the UBB mine, about 1,000 feet underground. Twenty-five miners were apparently killed in the explosion or shortly afterwards, and another four bodies were recovered later. It was described as the worst mine disaster in the United States in 40 years. Attention quickly turned to Massey and its subsidiary, Performance Coal Co., which operated the UBB mine. In the five years preceding the explosion, the MSHA had reportedly issued 1,342 citations to the mine for safety violations and proposed $1.89 million in fines.

Massey's competitor Alpha Natural Resources acquired the company in June 2011 and took control of Massey's assets, including the UBB mine. In December 2011, the MSHA announced that it had issued 369 citations to Massey, through Alpha, and imposed a $10.8 million fine in connection with the UBB mine explosion. The Department of Justice announced on the same day that it had reached a $209 million settlement with Alpha in its criminal investigation of Massey.

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Owner of Company that Allegedly Trains Customers to Pass Polygraph Tests Charged with Fraud, Witness Tampering

February 25, 2015

Polygram1.pngThe owner of a company that offers to teach customers how to pass a polygraph test, more commonly known as a "lie detector" test, has been indicted by federal prosecutors on five counts of fraud and witness tampering. United States v. Williams, No. 5:14-cr-00318, indictment (W.D. Ok., Nov. 13, 2014). Prosecutors allege that the defendant marketed his services to people who were scheduled to appear for polygraph tests with law enforcement and intelligence agencies. They further claim that he trained people "to lie and conceal crimes" in polygraph tests used during the employment screening process and during internal investigations.

Polygraph examinations use a device that measures and records a subject's pulse, blood pressure, respiration, and other indices as the subject answers a series of questions. The idea is that the subject will display different physiological responses when lying. The position of the scientific community, generally speaking, is that polygraph tests are not a reliable means of determining whether or not someone is telling the truth. Polygraph test results are nevertheless admissible in criminal trials in some U.S. jurisdictions under certain circumstances, and they are used by the federal government for employment screenings.

The test relies on the assumption that deception produces a unique set or pattern of physiological responses, but as the American Psychological Association notes, no evidence exists to support this assumption. Numerous other factors, including the placebo effect, could affect the results and produce false "positives." In Williams, the defendant is a former Oklahoma City police officer who has been an outspoken critic of polygraph tests for years. He owns and operates Polygraph.com, where, he claims, he does not offer training on how to "beat" the test, but rather how to avoid results that lead to false accusations of lying.

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Commodities Trader Charged in First Federal Case to Allege Use of High-Frequency Trading to Manipulate Market

February 19, 2015

Optical_fiber_cable.jpgIn the realm of financial criminal investigation, the term "spoofing" refers to the use of computer algorithms to manipulate markets by placing large orders in order to alter the price of a security, then quickly canceling the order. The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act amended the Commodity Exchange Act, 7 U.S.C. § 1 et seq., to add anti-spoofing provisions. Federal prosecutors have charged a commodities trader with multiple counts of commodity fraud and spoofing, in what is reportedly the first case brought under the amended law. United States v. Coscia, No. 1:14-cr-00551, indictment (E.D. Ill., Oct. 1, 2014). The case raises interesting questions about how computer programs could influence criminal cases.

The defendant is involved in high-frequency trading (HFT), a type of securities trading that is almost completely automated and that operates at speeds typically measured in thousandths of a second (milliseconds). Traders rely on computers with fast processing equipment and high-speed network connections. The most successful high-frequency traders are often the ones with the fastest equipment and the clearest digital connection to the markets. HFT has been the subject of a great deal of criticism because it can cause the information available to ordinary investors to become obsolete before it even reaches their computers.

According to the federal indictment, the defendant created two computer programs that he used to trade in commodities markets in Chicago and London. These programs allegedly used algorithms to place large numbers of orders for futures contracts and then canceled them in a matter of milliseconds. Other traders would see a high volume of orders, either bids to buy futures contracts or offers to sell them, creating "a false impression regarding the number of contracts available in the market." Coscia, indictment at 3. This would then "move[] the market in a direction favorable to" the defendant. Id. He allegedly made nearly $1.6 million from this strategy from August through October 2011. In 2013, the defendant and his company were fined $2.8 million by the U.S. Commodity Futures Trading Commission, and about $900,000 by the Financial Conduct Authority in the United Kingdom.

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Understanding the Potential Impact of Civilian Criminal Cases on Military Service Members in Texas

February 11, 2015

Fort_Bliss_1948_Issue-3c.jpgThe United States military is a major part of Texas' economic and political landscape. El Paso's Fort Bliss is one of the largest bases in the country, and the greater west Texas region boasts Laughlin Air Force Base in Del Rio, Dyess Air Force Base in Abilene, and Goodfellow Air Force Base in San Angelo. While military service members often live and work among civilians in Texas, different sets of laws apply to them in many situations. A criminal case in a civilian court may affect a military service member's career in ways that are difficult to predict without knowing a bit about military law.

Federal law prohibits anyone with a felony conviction from enlisting in the armed forces. 10 U.S.C. § 504(a), 50 U.S.C. App. § 456(m). Once a person joins one of the uniformed services, they come under the jurisdiction of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801 et seq. The UCMJ outlines procedures for trials, known as courts-martial, and other types of disciplinary action. It identifies offenses that are not found in civilian life, such as desertion, absence without leave, and disobeying orders, and it also includes criminal offenses ranging from theft and fraud to assault and murder.

A court-martial is similar to a trial in civilian court, with key differences based on the structure of military life. In some ways, defendants in courts-martial have far more rights and protections than in civilian trials. Civilian criminal cases may originate with a closed grand jury proceeding, or merely the filing of an information or indictment. A court-martial must be preceded by an investigation, known as an Article 32 hearing, at which the accused may have counsel, cross-examine witnesses, and present evidence. 10 U.S.C. § 832.

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"Fair Sentencing" Laws Eliminate Mandatory Minimum Sentences, Sentencing Disparities for Certain Drug Offenses

January 26, 2015

CocaineHydrochloridePowder.jpgLegislation signed into law last fall in California eliminates sentencing disparities for drug offenses involving powder and crack cocaine, a relic of 1980s federal anti-drug policy that is being slowly rolled back. In 1986, Congress imposed considerably harsher penalties for drug offenses involving cocaine base, commonly known as crack cocaine, than for offenses involving cocaine hydrochloride, or powder cocaine. Some states also passed laws imposing disparate sentences. Congress passed the Fair Sentencing Act in 2010, which reduced but did not eliminate the sentencing disparity between the two drugs. Subsequent legislation has made additional improvements to the sentencing system. California's new law eliminates the disparity entirely.

The Anti-Drug Abuse Act of 1986 established a "100 to 1" sentencing disparity between powder and crack cocaine. Possession of five grams, or roughly one-fifth of an ounce, of crack cocaine carried a mandatory minimum prison sentence of five years without parole. The same sentence applied to possession of 500 grams of powder cocaine, equal to slightly over one pound. The same ratio applied to larger amounts of both substances. Whatever Congress' intent in passing this law, it resulted in a substantial racial disparities in enforcement, along with numerous other injustices.

In 2010, Congress addressed the issue by passing the Fair Sentencing Act, which reduced the sentencing disparity from 100-to-1 to 18-to-1. The threshold amount of powder cocaine required for a federal felony possession charge remained 500 grams, while the amount of crack cocaine was increased from five to 28 grams. This may still seem like a dramatic difference, but it is a vast improvement over the 1986 law. The bill also eliminated the five-year mandatory minimum sentence for first-time offenses involving possession of small amounts of crack cocaine. A bill that would further reduce the sentencing disparity, the Smarter Sentencing Act of 2014, did not pass in the last Congressional session.

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