FAMMGram, Fall 2011

Inside 1 Passion for justice FAMM president Julie

Stewart looks back at the beginnings of FAMM in 1991 and the 20 years of progress we’ve made toward fair and proportion-ate sentencing laws.

3 Why I Care project Video testimonials and

new FAMM website give supporters a way to tell the world “Why I Care” about sentencing reform.

7 FAMM milestone: Retroactive crack guidelines effective November 1 One of FAMM’s biggest accomplishments, the reform of crack cocaine sentencing laws is one huge step toward sentencing justice.

11 Massachusetts Judiciary Committee hears from FAMM

Testimony from FAMM, a committee room packed with concerned citizens, and a new report on the need for sentencing reform sent a powerful message to lawmakers.

features

7 Federal news

11 State news

13 Litigation

14 Is justice being served?

15 Outreach

departments

F A L L 2 0 1 1

ISSue 3 | VOluMe 22 Families Against Mandatory Minimums

Sentences that f it . Justice that works.GramFAMM

COnTInued On pAGe 4

Passion for

It WAS the yeAR OF Clarence Thomas vs. Anita Hill, the Rodney King beating, the start of the first U.S. war in Iraq, the

collapse of the Soviet Union and the end of the Cold War. But I will always remember 1991 as the year I became so angry about our stupid sentencing laws that I decided to start FAMM.

My brother had just been sentenced to five years in federal prison for grow-ing marijuana, and I grew incensed watching a powerful, black-robed federal judge announce that he had no

say in the matter. My family learned the hard way how devastating and unfair mandatory minimum sentencing laws could be. I soon learned that a lot of other families had it worse and that there were no national organizations dedicated to taking on one-size-fits-all sentencing laws.

With help from the National Association of Criminal Defense Lawyers, word was circulat-ed to attorneys that I wanted to know about

their client’s cases. Before long, I had a cardboard box filled with letters from prisoners. I quit my paying job, plunked my box down in free office space donated by my soon-to-be board member, Eric Sterling, and FAMM was born.

By Julie stewart, faMM president and founder

top to bottom: Anita hill and Clarence thomas; Julie and Jeff Stewart; the Berlin Wall.

Since 1991

Mission: faMM is the national voice for fair and proportionate sentencing laws. The FAMMGram is published three times a year.

hAPPy BIRthdAy, FAMM! Who could have imagined two decades ago that my brother’s conviction for growing marijuana would lead to the launch of an organization that would last 20 years! I would never have believed it. I was sure we could “fix” this problem of long mandatory minimum sentences within five years and I would move on to do something else with my life.

Ha! Little did I know how much resistance we would face to the principle of justice that is commonly accepted throughout this country – that the punish-ment should fit the crime and the offender’s role in the crime. What could be clearer? What could be more American?! Yet, in Congress and state houses everywhere, lawmakers have manipulated that principle to suggest that it means being soft on crime. Being fair is being soft? No, I don’t accept that interpretation. And neither do you. And that’s why FAMM is still here, 20 years later, fighting for the kind of individualized sentencing that everyone deserves.

FAMM’s focus on individualized sentences means we oppose mandatory minimums for all crimes. That’s why you’ll see on pages 8-9 a number of federal bills we’re trying to strip mandatory mini-

mums from. Even if the sentences aren’t long, allowing them to get through reinforces

the idea that mandatory minimums are okay and encourages other legislators to propose them. No sentence is acceptable if it prevents a judge from considering all the facts of the case. Take a look at the profiles on page 14 and you’ll see how

one-size-fits-all sentencing fails miserably

in delivering justice. That’s the message we have to hammer home again and again.

Twenty years ago when I wrote the first FAMM newsletter, I closed it by saying,

“Your life is important to us. As the saying goes, ‘the wheels of justice turn very slowly,’ but we are trying to speed them up. You are not alone in this struggle.”

Those words still ring true. Last week I received a thank you note from a federal prisoner who was sen-tenced in the early 90s to life in prison for a nonvio-lent crack cocaine offense. After FAMM’s crack vic-tory in 2007, his life sentence was lifted and changed to 30 years. After FAMM’s crack victory this year (see page 7), he is expecting to be released by the end of the year. He ended his letter with these words, “You are the reason I have this life sentence off me now. I am a friend always.” His words went straight to my heart. And while I alone cannot take credit for his immi-nent freedom, it is profoundly satisfying to know that FAMM – all of us together – have forced the wheels of justice to move faster and prevented this man from living out the rest of his life in prison.

After 20 years of nose to the grindstone, it’s time to pause and celebrate our 20 years of victories (see time-line on page 4). But when the candles are blown out and the cake is eaten, it’s time to get back to work to so we can change the course of thousands more lives.

My very best –

president’smessage

2 FAMMGram Fall 2011

F A M M G R A M F A l l 2 0 1 1 I s s u e 3 V o l u M e 2 2

Julie Stewart President

Mary price Vice president and general counsel

Jennifer Seltzer Stitt

Federal legislative affairs director

leigh Bailey Development director

Barbara J. dougan Massachusetts project director

Greg newburnFlorida project director

Andrea Strong Member services director

Molly Gill Special projects director and staff attorney

Monica pratt Raffanel Communications director

Kate Taylor Research associate

Roxana Rincones Finance and administration director

Karen Garrison D.C. office assistant

FAMM national Office 1612 K Street, nW, Suite 700 Washington, d.C. 20006 phone (202) 822-6700 fax (202) 822-6704 [email protected]

FAMM’s offices do not accept collect calls. FAMM cannot respond to requests for legal help.

sentences that fit. Justice that works.FAMILIeS AGAINSt MANdAtORy MINIMUMS

3 FAMMGramFall 2011

FAMM welcomes

Leigh Bailey [development director]A dynamic and creative fundraiser, leigh brings 15 years of fundraising experience to FAMM. She helped Community of Hope, the last organization she worked

with in Washington, d.C., increase its foundation giving from $200,000 in 2001 to over $800,000 in 2010. leigh is working closely with FAMM president Julie Stewart to increase funding for FAMM’s sentencing reform programs.

Kate taylor [Research associate]Kate’s interest in criminal justice reform was sparked while interviewing formerly incarcerated people for a documentary film project at Brown

university. As a fellow, she put her re-search and writing skills to use at the Jus-tice policy Institute, conducting research on incarceration and public defender systems nationwide. In addition to writing FAMM’s profiles, Kate is keeping FAMM’s Facebook pages fresh.

IN A NAtION where 1 in every 31 adults is incarcerated or on parole, probation, or supervised release, unjust mandatory sentencing laws affect everyone, in many different ways.

To show the world why mandatory sentencing laws must change, FAMM is launching an exciting new online video project called “Why I Care” to give a voice to the growing movement for sentencing reform.

Our goal: to showcase a wide variety of viewpoints and help lawmakers and the public better understand the breadth and depth of support for change. This is our chance to tell the nation why we care about re-forming unjust mandatory minimum sentencing laws.

tell us why yOU care We’ve recorded over two dozen, two- to three-minute videos so far, and will debut them on our brand new FAMM website this fall. Now YOU tell us why you care about sentencing reform! Shoot your own Why I Care video for the website. FAMM will edit and post the videos on our website and YouTube page.

We’re gathering testimonials from:

family members and children of prisoners enduring their loved one’s incarceration

judges who were forced to apply mandatory mini-mums in cases where the punishment did not fit the crime

lawyers who have defended low-level offenders and seen too many people sent to prison for too long

sentencing commissioners, criminal justice re-searchers, academics and lawmakers who believe in fair and proportionate sentencing laws

taxpayers who are sick of paying billions to support an unsustainable system of mass incarceration.

For guidelines and instructions on how to record and submit your Why I Care video, visit www.famm.org and click “video + media.” FG

Why I Care video campaignand new FAMM website

4 FAMMGram Fall 2011

From that humble beginning, I have been so gratified to watch FAMM grow into an organization that, at last count, has changed the lives of at least 165,000 individuals and their families. So many people have made FAMM’s journey possible, including people in positions of influence and power.

We often have to rely on the media to get our message out – and some reporters have stood out in their willingness to highlight unjust sentencing laws. One of the first pieces I read was written in 1991 by Stuart Taylor at Legal Times, who described a federal judge in California breaking down on the bench as he sentenced an elderly man to a 10-year mandatory minimum. Dennis Cauchon of USA Today wrote repeatedly about the extreme sentences given to “Deadheads,” (those who followed the Grateful Dead on tour) whose drug of choice was LSD. Gary Fields of the Wall Street Journal has doggedly reported on the collateral consequences of stiff sen-tencing laws and other unforgiving criminal justice policies.

Lawmakers have stepped up, too, bucking the trend toward ever higher sentences. As early as October 1992, U.S. Congress-men Don Edwards and Ed Jenkins introduced a bill to repeal all federal mandatory minimum sentences. Over the past 20 years, other members of Congress, both Democrats and Republicans, have fought to repeal mandatory minimums or at least curb excessive sentences. There are too many to name (and I would probably get myself in trouble if I left someone out!) but we have been fortunate to have some tireless advocates in Congress and in many state legislatures.

I have been especially grateful for the courage that some judges have shown in using the bully pulpit of the bench to harshly criti-cize the sentences they must hand down. Again, there are simply too many to mention by name, but one of my favorite criticisms of mandatory sentences was delivered by U.S. District Court Judge J. Spencer Letts at a sentencing hearing. He said, “Statu-

COnTInued FROM pAGe 1

First FAMM volunteers

FAMM inaugural year

Jeff Stewart, convicted of growing marijuana, is catalyst for FAMM.

FAMM establishes Washington, d.C., office.

FAMM victory

lSd dosage weight standardized under u.S. Sentencing Guidelines.FAMM led campaign for change.

years20FAMM victory

Congress enacts safety valve provision allowing federal judges to exempt certain nonviolent, first-time drug offenders from mandatory minimum penalties. FAMM led campaign for change.

Congress passes law granting one year off for prisoners completing federal drug treatment program.

1990 1991 1992 1993 1994 1995 1996

early FAMM rallies

FAMM victory

Marijuana plant weight standardized under u.S. Sentencing Guidelines. FAMM led campaign for change.

Stewart testifies at first federal hearing on mandatory sentences

FAMM members Bill Boman and Arthur Curry flank Julie Stewart at Sentencing Commission hearing.

5 FAMMGramFall 2011

tory mandatory minimum sentences create injustice because the sentence is determined without looking at the particular defen-dant… It can make no difference whether he is a lifetime crimi-nal or a first-time offender. Indeed, under this sledgehammer approach, it could make no difference if the day before making this one slip in an otherwise unblemished life the defendant had rescued 15 children from a burning building or had won the Congressional Medal of Honor while defending his country.”

But the heroes of the last 20 years were not politicians, judges, and reporters. Those were not the people who motivated us to get out of bed each morning and fight for reform even when the deck looked stacked against us. It was ordinary people from dif-ferent backgrounds and different regions across this wide country who have shared their histories, their failings, and their hopes with us, so we could explain – in human terms – what manda-tory sentencing really means. Our profiles of individuals serving

mandatory sentences make the debate more personal, more real. Too many people stop listening after they hear someone has been convicted of a crime. They don’t think about whether the punish-ment fits the crime and whether an excessive sentence creates a second injustice. Our profiles make them stop and think.

A feeling proves correctI started FAMM because I thought judges should have a say in the sentences they impose, but also because I thought most manda-tory minimums were – and are – excessive. My sense that sentences were too long was not the result of some academic research I had done. I didn’t need to go to law school to figure it out. It was some-thing I just felt. I knew my brother deserved punishment, but I also knew he didn’t need five years to learn his lesson.

The wonderful thing about running FAMM for these past 20 years is that I have gotten to see – through the resilience, cour-

of legislaTive vicTories in senTencing reforM

FAMM victory

Supreme Court decision in Apprendi v. U.S., rules that any fact, except for prior offenses, increasing the maximum sentence beyond a crime’s statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

president Bill Clinton commutes federal drug sentences of two FAMM members.

FAMM victory

Michigan legislature replaces mandatory minimums after FAMM-led campaign, enacting the most sweeping reforms of mandatory minimum drug laws in u.S. since repeal of federal mandatory minimums in the 1970s. effective January 2003, over 1,200 prisoners released early; 3,200 more end lifetime probation.

u.S. Sentencing Commission approves FAMM-supported drug sentence “cap” that lowers sentences for more than 1,200 low-level drug offenders each year.

years1996

FAMM victory

president Clinton commutes the federal sentences of 17 FAMM members.

1997 1998 1999 2000 2001 2002 2003 2004 2005

FAMM victory

Michigan legislature repeals state’s 650 lifer law after successful FAMM-led campaign. nearly 200 lifers become eligible for parole after 15-20 years in prison. Jedonna Young paroled after nearly 21 years in prison.

Lobby day in Washington, d.C.

FAMM victory

In two cases, Booker and Fanfan, the u.S. Supreme Court declares federal sentencing guidelines advisory, not mandatory. Mandatory minimum laws, however, are nOT affected by the ruling.

Jedonna young

6 FAMMGram Fall 2011

age, and character of so many of you and your families – that my gut feeling was right.

The successful lives led by those who have benefited from re-forms we fought to achieve prove it. You see, the most powerful way to prove mandatory sentences are too long is to watch what happens when you get rid of them or at least reform them.

Every major victory we have achieved has enabled individu-als, including many of you reading this today, to return to their families and society earlier to live productive lives. Your successes have helped us make the case for additional reforms, and the wheel of change has rolled in the direction of justice every year.

In Michigan, we helped to repeal the state’s brutal 650 Lifer law, and people like Frank Rodriguez and JeDonna Young walked out of prison and into college. In Washington, our safety valve

has helped 68,000 so far avoid a mandatory minimum sen-tence that didn’t fit their crime. While some proclaimed the sky would fall, the only thing that has fallen since the safety valve was passed in 1994 is the national crime rate. You have probably heard me mention the success stories of Lawrence Garrison and Natasha Darrington, two beneficiaries of the crack reform we persuaded the U.S. Sentencing Commission to adopt in 2007. We now know that recidivism rates for all of the people let out early by this reform is lower than the recidivism rate for those who served their full term.

FAMM’s members have not only talked about how sentences were too long. They have walked the walk – and proven it. To those who made the most of their second chance, please know that you have our respect and gratitude. To those still waiting, please know that we will not stop until you, too, have the oppor-tunity to begin again. FG

FAMM victory

u.S. Sentencing Commission amends harsh crack cocaine sentencing guidelines, reducing crack sentences by an average of 15 months for nearly 70 percent of defendants. The reforms are also retroactive, so an estimated 20,000 people already serving federal sentences for crack cocaine offenses become eligible for sentence reductions of between one and four years. FAMM generates 33,000 letters of support from the public for crack cocaine sentencing reforms.

president George W. Bush commutes the sentence of a FAMM member.

2006 2007 2008 2009 2010 2011

COnTInued FROM pAGe 5

FAMM victory

FAMM helps win passage of the Second Chance Act, which increases halfway house time for federal prisoners and creates the first elderly Offender Home detention pilot program, allowing eligible aged prisoners to serve the end of their sentence in their own homes.

FAMM victory

FAMM wins multi-year campaign for re-forming new Jersey’s drug-free school zone. The new law gives judges a “safety valve” to avoid the punitive mandatory minimum when it clearly should not apply. This reform pre-served the original intent of the law, which was to protect children from being targeted by drug dealers.

FAMM’s Massachusetts project earns a hard-fought victory when the state House

and Senate agreed to allow drug offenders serving manda-tory minimum sentences in county jails to be eligible for parole.

years20

FAMM supporters applaud Commission vote

Attorney General eric holder with FAMM staffers Jennifer Seltzer Stitt and Karen Garrison at dOJ ceremony.

FAMM victory

The u.S. Sentencing Commission votes to make federal crack reforms retroactive, a change that affects nearly 12,040 individuals. FAMM led the campaign for change and generated over 42,000 letters in support for reform.

FAMM victory

FAMM wins its 17-year campaign to change crack cocaine sentencing laws.

of legislaTive vicTories in senTencing reforM

7 FAMMGramFall 2011

Retroactive crack guideline reductions effective November 1

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ON JUNe 30, the U.S. Sentencing Commission voted unanimously to make the 2011 crack cocaine guideline reductions retroactive. This historic change affects nearly 12,040 individuals convicted of federal crack offenses under the sentencing guidelines, making them eligible to apply for a sentence reduction on November 1.

This is a huge victory for FAMM and advocates of justice who worked tirelessly to achieve reforms of the crack and powder cocaine disparity. Over 42,000 people wrote the Commission in support of retroactivity, many of whom were FAMM members. On the day of the vote, more than a dozen FAMM members from across the country came to D.C. to witness the decision.

The U.S. Sentencing Commission was decisive in its action, with many commissioners voicing a passionate defense of their decision. After the vote, Commission chair Judge Patti B. Saris noted, “In passing the Fair Sentencing Act, Congress recognized the fundamental unfairness of federal cocaine sentencing policy and ameliorated it through bipartisan legislation. Today’s action by the Commission ensures that the longstanding injustice recognized by Congress is remedied.”

When retroactivity becomes available on November 1, eligible prisoners who succeed in convincing the court to reduce their sentences will see an average sentence reduction of nearly 37 months. The federal Bureau of Prisons says the reductions could save more than $200 million in the next five years.

No one will receive an automatic sentence reduction. Sentence reductions must be requested by submitting a

motion under 18 U.S.C. § 3582(c)(2) to the court that sentenced the prisoner. Generally, the motion will be submitted to the court by an attorney. The court will typically give the prosecutor a chance to oppose the sen-tence reduction. The court can give all, part, or none of the requested sentence reduction. There is no guarantee that any prisoner will receive a sentence reduction, even

if they are eligible for one. Whether a person gets a sentence reduction is entirely up to the court.

Another positive development for certain federal crack offenders came two weeks after the com-mission voted for retroactivity. The U.S. Attorney General advised federal prosecutors of a Depart-ment of Justice (DOJ) to do an about-face on the so-called crack “pipeline cases” under the Fair Sentencing Act of 2010 (FSA). This means that prosecutors should now ask the courts to apply the FSA’s lower penalties to people who have not been sentenced and whose crimes were committed before August 3, 2010, the date the FSA became

effective. The policy reversal could also affect some of the nearly 4,000 federal crack offenders who have been sen-tenced since August 3, 2010, but did not get the benefit of the lower FSA sentences.

While FAMM rejoices at the achievement of this major milestone, the decision represents justice done but not yet completed. The Commission cannot make changes to mandatory minimums retroactive, only Congress can do that. To that end, Congressman Robert “Bobby” Scott (D-Va.) has introduced a bipartisan bill to apply retroactively the sentence reductions included in last year’s Fair Sentencing Act (FSA). Rep. Scott was joined in sponsoring the legislation by Reps. Ron Paul (R-Texas); Roscoe Bartlett (R-Md.); John Conyers (D-Mich.), rank-ing member of the House Judiciary Committee; Keith Ellison (D-Minn.); and Alcee Hastings (D-Fla.). FG

FAMM supporters and staff celebrate the historic vote.

federalnews

“In passing the Fair Sentencing Act, Congress

recognized the fundamental unfairness of federal

cocaine sentencing policy and ameliorated it

through bipartisan legislation. Today’s action by

the Commission ensures that the longstanding

injustice recognized by Congress is remedied.”

JUdGe PAttI B. SARIS, U.S. SeNteNCING COMMISSION ChAIR

8 FAMMGram Fall 2011

federalnews, continued

eveRy SeSSION, members of Congress offer up bills that carry new mandatory minimums, hoping to get tough on whatever “crime du jour” is in the news at the moment. This year is no different.

At the same time, others in Congress are working to pro-vide sentencing relief by introducing sentencing reform bills and speaking out loudly about the problems caused by inflexible mandatory minimums. Here’s a roundup of the sentencing bills that are heating up the debate.

924(c) offensesOn June 24, Representative Robert “Bobby” Scott (D-Va.) introduced legislation to clarify a sentencing law that results in overly harsh sentences for some gun offenses. H.R. 2398, the Firearm Recidivist Sentenc-ing Act of 2011, would amend 18 U.S.C. § 924(c) to ensure that individuals who carry a firearm while committing a violent crime or drug trafficking offense face the 25-year mandatory minimum for repeat of-fenses only if they have been previously convicted and served a sentence for a 924(c) offense.

The repeat offender mandatory minimum currently includes a five-year mandatory minimum sentence for carrying a firearm while committing a violent crime or drug trafficking offense; a seven-year mandatory minimum sentence for brandishing the firearm dur-ing the offense; a 10-year mandatory minimum for discharging the firearm during the offense; and a 25-year mandatory minimum for repeat offenses.

Furthermore, because the 924(c) sentence must be served consecutively to the sentence for the underly-ing offense and any other 924(c)sentence imposed, the ultimate sentence length can be greatly increased, often far beyond what the U.S. Sentencing Guidelines would recommend.

H.R. 2398 would ensure that the penalty captures only true recidivists, by requiring that a previous convic-tion must be final before the 25-year mandatory minimum may be sought.

Like other reform bills, this bill has a long road to travel. It has to go through House and Senate judiciary

committee and receive a vote by both the full House and the Senate. In each Congress, as many as 10,000 to 14,000 bills are introduced, of which only around 2,000 ever become law.

Bipartisan call to give states the right to regulate marijuana use

Introduced by Reps. Barney Frank (D-Mass.), Ron Paul (R-Texas) and Dana Rohrabacher (R-Calif.) on June 23, H.R. 2306, the Ending Federal Marijuana Prohibition Act of 2011, would remove marijuana from the list of federally controlled substances while allowing states to decide how they will regulate it. The bill would limit the federal government’s role in mari-juana enforcement largely to cross-border or inter-state smuggling. In doing so, the bill would eliminate federal mandatory minimum sentences for purely in-trastate marijuana offenses. The bill maintains federal penalties, including mandatory minimums, and fines for shipping or transporting marijuana across district, state, territorial or national borders.

Proposal to remove all drug mandatory minimums

On June 22, Congresswoman Maxine Waters (D-Ca-lif.) introduced H.R. 2303, the Major Drug Trafficking Prosecution Act of 2011. The bill would eliminate all mandatory minimum sentences for drug offenses; curb federal prosecutions of low-level drug offenders; and allow courts to place offenders on probation or suspend their sentence.

In a speech on the bill, Congresswoman Waters issued a powerful call to action, and it is one that FAMM echoes: “We now have the opportunity to identify some consensus priorities regarding the changes needed in our federal sentencing policy, including mandatory minimums. It is time to take the message to the White House, to the Republican leadership, and across the States.”

debates over mandatory sentences heating up in Congress

9 FAMMGramFall 2011

Rumor millFAMM is continuing to receive daily emails and calls about good time increases or parole bills. despite the rumors that are floating around, there have been no changes to federal good time or parole.

Cyber securityIn May, the Obama Administration unveiled a com-plex new package of proposals designed to strengthen “cyber security”—the security of the computers and computer infrastructures used to govern and protect America. Sounds good, right? Not so fast. One of the bills includes a new three-year mandatory minimum for anyone who knowingly causes or attempts to cause major damage to these computer systems.

Although the need to protect our nation’s critical infrastructure in the digital world is great, mandatory minimums are never a good idea. FAMM made that argument in testimony submitted to the Senate Judi-ciary Committee on September 7, telling lawmakers that mandatory minimums are the wrong approach. We were also joined by more than two dozen orga-nizations in a letter to the committee requesting that they reject any effort to add new mandatory sentences to the cyber security bill.

At the hearing, Judiciary Chairman Senator Patrick Leahy (D-Vt.) noted his strong opposition to manda-tory minimums, stating “I do not intend to include it in the bill… I want strong penalties, but the manda-tory minimum is something that I worry it can be abused.” FAMM was later pleased to learn that the Obama Administration was no longer pushing for the inclusion of the mandatory sentence.

Unfortunately, we’re not out of the woods yet. The version of S. 1151 that was marked up in late Septem-ber still includes the three-year mandatory minimum.

Identity theftOn July 21, the House Judiciary Committee passed H.R. 2552, the Identity Theft Improvement Act of 2011, sponsored by Rep. Bob Goodlatte (R-Va.) and Rep. Adam Schiff (D-Calif.). The bill would amend current laws forbidding and punishing identity theft that prohibit the transfer, possession or use of another person’s identification with the intent to commit or aid an unlawful activity, or in connection with certain felonies.

Rep. John Conyers, Jr. (D-Mich.), ranking member of the House Judiciary Committee, and Reps. Robert “Bobby” Scott (D-Va.), Sheila Jackson Lee (D-Texas), and Henry C. “Hank” Johnson, Jr. (D-Ga.) registered their opposition to the bill, saying “Because this bill expands the reach of mandatory minimum sentences, with particularly serious concerns with respect to its application to undocumented immigrants, it does not constitute an advance in the fight against the serious problem of identity theft. Rather, it would reduce the ability of the courts to apply appropriate, case-specific sentences and would waste scarce resources through overincarceration.”

In late September, the House Judiciary Committee marked up another identify theft bill, H.R. 2885, the Legal Workforce Act, introduced by Chairman Lamar Smith (R-Texas). The bill contains both mandatory minimums and mandatory consecutive sentences. FAMM sent a letter to the committee making clear that, while we take no position on the underlying bill, we strongly oppose the mandatory and consecutive sentencing provisions.

Synthetic drugs Congress is moving quickly to outlaw chemicals found in a number of synthetic drugs, including compounds found in synthetic marijuana and bath salts. The bi-partisan bills would add a series of chemicals to Sched-ule I of the Controlled Substances Act, expanding the number of people facing severe mandatory minimums of 20 years up to life if serious bodily injury or death results from the use of the synthetic substances.

FAMM is working diligently in opposition to the mandatory sentencing provisions and will post up-dates on our website. FG

10 FAMMGram Fall 2011

CONGReSS WAS unable to pass a long-term appropria-tions bill before the September 30 deadline, but the de-bate in the House of Representatives and the Senate over how funds for criminal justice should be spent largely show a tug of war on spending priorities. For example:

The House Appropriations Subcommittee on Com-merce, Justice, and Science approved $70 million for Second Chance Reauthoriza-tion Act funding in FY 2012.

In contrast, the Senate Appropriations Subcommittee approved dramatic spending cuts for prisoner reentry by eliminating funding for the Second Chance Reauthorization Act.

The Senate Appropriations Subcommittee would also increase overall spending for the federal Bureau of Prisons (BOP) by $307 million above FY 2011 levels, while cutting funding for

nearly all other law enforcement agencies.

Despite supporting an overall increase in the BOP budget, the Senate Appropriations Subcommit-tee noted that “given the limited flexibility of the Federal prison and detention budget requests, and unless the inmate populations experience

unforeseen decreases, the day approaches fast when Federal prisons and deten-tion demands swallow the Justice Department’s budgetary resources.”

FAMM was encouraged by the inclusion of language in the Senate bill that encouraged the BOP to fully use its discretion to reduce prison populations. It called on the BOP to expand the criteria and use of compas-sionate release, maximize the reentry time prisoners spend in residential reentry centers as well as home confinement, and expand the use of the Residential Drug Abuse Program.

tug of war on corrections spending

ON JULy 21, nearly one month after its introduction, the Senate Judiciary Committee approved the Second Chance Reauthorization Act, S. 1231, sending the bill to the Senate for consideration. The reauthorization proposal, introduced by Senate Judiciary Chairman Patrick Leahy (D-Vt.) and Senator Rob Portman (R-Ohio), includes funding to continue many of the programs started under the Second Chance Act. The bill extends key Second Chance programs, consolidates several programs for better efficiency and reduces the overall cost of the program.

The Second Chance Act originally passed in 2008 with overwhelming bipartisan support. The law promotes evidence-based programming to aid prisoner reentry and improve public safety. Since its passage, some 250 grants have been awarded providing substance abuse treatment, employment and mentoring services, among other things, to improve the transition from incarceration to communities.

The reauthorization bill would also extend and ex-pand the Elderly and Family Reunification for Certain

Nonviolent Offenders Pilot Program, a now expired home detention program for elderly, nonviolent federal prisoners who meet strict criteria. The bill also includes an additional seven-day good time adjust-ment to be applied to all prisoners and a 60 day in-crease in earned time credit for those who participate in recidivism reducing programs, with a maximum of 33 percent good time awarded per year.

In statements on the legislation, Sen. Leahy and Sen. Portman have emphasized reduced recidivism and overall tax savings that result from reentry support and programming. In a press conference about the bill, Sen. Portman argued that the “bill will help in-mates turn their lives around and become productive members of society, ensuring better stewardship of taxpayer dollars.”

Learn more about the Second Chance Reauthorization Act by reading FAMM’s Frequently Asked Questions on the Second Chance Reauthorization Act, available at www.famm.org. FG

everyone deserves a second chance

federalnews, continued

11 FAMMGramFall 2011

statenews

ON SePteMBeR 20, the Massachusetts legislature’s Judiciary Committee held a public hearing on several sentencing reform bills, including two bills drafted by FAMM (H. 2266/S. 909 and H. 2267/S. 908) and a bill filed by Gov. Deval Patrick (H. 40). The standing room only crowd included many FAMM members who came from around the state to show their support for fair and effective drug sentencing laws.

FAMM organized a panel of speakers who testified in support of sentencing reform. Before starting her remarks, Barbara Dougan, FAMM’s Massachusetts project director, asked the FAMM members present to

stand and be recognized. It was very moving to see our members standing proud. It also let commit-tee members see the real people touched by the state’s harsh drug sentenc-ing laws.

Michelle Collette, who served seven years for a nonviolent drug offense, described the heartbreak

of giving birth to her son while incarcerated and sending him home with relatives two days later when she returned to prison. Maryanne Frangules, head of the Mass. Organization for Addiction Recovery, urged lawmakers to recognize the role of drug addiction and to focus more on treatment and recovery.

The Judiciary Committee did not make any decision about which bills will move forward. Given the num-ber of bills the committee must review, it could take weeks, or even months, before we know which ones will be recommended for the next level of review.

New Massachusetts report: voices for Reform

On the day of the Massachusetts Judiciary Committee hearing, FAMM also released a new report, Voices for Re-form: 30 Years of Mandatory Minimums in Massachusetts. Most of the state’s mandatory minimum sentences for drug offenses have now been on the books for 30 years, a sad milestone that needs to be recognized. Eight people

with various perspectives and impressive expertise contrib-uted articles on the need for sentencing reform, including:

Andrea Cabral, Suffolk County Sheriff;

Matilde Castiel, a physician and medical school professor;

Bill Delahunt, former congressman and former Norfolk County District Attorney;

Maryanne Frangules, head of the Massachusetts Organization for Addiction Recovery (MOAR);

Nancy Gertner, former federal judge, now a profes-sor at Harvard Law School;

Linda Sullivan, mother of a son serving a mandatory minimum;

Robert Ziemian, drug court judge, and

Author Dennis Lehane, who wrote the introduction.

A copy of the report is available on our website, www.famm.org.

FAMM’s Why I Care video project comes to Boston

On the morning of the Judiciary Committee hearing, 12 FAMM members videotaped statements as part of FAMM’s new Why I Care video project (see story on page 3). They explained how mandatory minimum sen-tencing laws have affected them and their loved ones. Their remarks were heartfelt, eloquent and compelling. We greatly appreciated their will-ingness to share often difficult stories, which will be used in our campaign for sentencing reform. After the videos are edited, they will be posted on FAMM’s website and on YouTube.

Massachusetts Judiciary Committee hears testimony in support of sentencing reform

Massachusetts project on the moveThe new address of FAMM’s Massachusetts project is:p.O. Box 54 Arlington, MA 02476

Our phone number and email address remain the same:Tel: (617) 543-0878 email: [email protected]

FAMM supporters came from across Massachusetts to support reform

Michelle Collette and Barbara dougan

12 FAMMGram Fall 2011

statenews, continued

floriDa Florida project appeals to conservatives ahead of 2012 legislative session

Florida FAMM Project Director Greg Newburn has spent the past several months introducing FAMM’s Florida project to conservative groups in Florida and around the country.

In July, Newburn attended the inaugural meeting of the board of directors for the new Florida TaxWatch “Committee on Smart Justice,” where he made the case for sentencing reform to key state leaders. In its most

recent “Government Cost Savings Report,” TaxWatch included “flexibility in sen-tencing” among the reforms it proposed to the legislature and governor.

In August, Newburn traveled to Seattle, Washington for the State Policy Network annual conference, attended by more than 650 conserva-tive policy analysts, think tanks and activists from around

the country. While at the event, Newburn introduced FAMM’s Florida project to a number of activists and conservative think tank officials who expressed interest in criminal justice reform and specifically sentencing reform. He worked closely with leaders from conser-vative, state-based think tanks all over the country discussing the need for left and right to come together in support of common sense reforms.

In September, Newburn met with several Republican groups around the state, taking the opportunity to explain why Florida conservatives should support sentencing reform. Almost everyone was supportive of the effort. Additionally, Newburn attended “CPAC FL,” a large gathering of conservative activists and elected officials from across Florida and the nation. The event was sponsored by the American Conservative Union and held in Orlando. At CPAC, Newburn was able to speak with Tea Party activists, conservative grassroots coordinators and Republican state legislators, and

explain the Florida project and how comprehensive sentencing reform could save Florida taxpayers hun-dreds of millions of dollars.

Bills in the pipeline

Building on FAMM’s conservative outreach efforts, we will soon have bipartisan support for bills to be filed in both the House and the Senate that would comprehensively overhaul Florida’s drug trafficking statute and repeal mandatory minimum sentences for drug trafficking.

Last session, our bills were filed relatively late in the legislative process. However, this year they will be filed well before the session starts, which will give us plenty of time to tell our legislators that now is the time for reform!

how you can help

The next few months will be critical in the campaign to reform Florida’s sentencing laws. It is crucial that we capitalize on the momentum we have built so far, and that’s going to require that we all do our part, from the Panhandle to the Keys.

Between now and January, FAMM will be hold-ing membership meetings and training sessions all around the state to help prepare everyone for the upcoming fight in Tallahassee. Please attend the meetings, or ask your loved ones to attend.

To stay updated on all of Florida FAMM’s latest news, sign up on our email list at www.famm.org, and get involved on Facebook and Twitter. You can “like” FAMM on Facebook and “follow” both the D.C. office (@FAMMFoundation) and the Florida Project (@FloridaFAMM) on Twitter. Many Florida legislators have some presence on one or both of these websites, and it’s an easy way to get our mes-sage across!

Commit to introducing the Florida project to five friends, family members, colleagues or acquaintanc-es, and have them sign up for our ealerts.

If you don’t already know them, familiarize yourself with the names and contact information of your state representative and senator. You can find this information at www.famm.org.

If you have any questions about the Florida reform efforts, please call Greg Newburn at (352) 682-2542, or email [email protected]. FG

Greg Newburn speaks to students at the University of Florida.

13 FAMMGramFall 2011

litigation

Krieger: In worst cases, discretion matters mostFAMM FILed an amicus brief in Krieger v. United States because the case raises significant questions about a controversial federal mandatory minimum law, which the 7th Circuit Court of Appeals reluctantly inter-preted to require a far lengthier sentence – 20 years – than the district court believed was warranted for a first-time, nonviolent offender.

Jennifer Krieger is a single mother who suffers from severe and chronic pain as a result of several medical conditions, including spinal cord defects and a brain deformity known as Arnold-Chiari malformation. Her doctor prescribed Krieger the pain medication fentanyl to manage the pain.

One night Krieger went out with a friend, Jennifer Curry, with whom she occasionally used drugs. Krieg-er gave Curry one of her pain medication patches before they went out for the evening. At midnight, Krieger left her friend at a bar. The next morning, Curry was found dead on her parent’s couch. Traces of Krieger’s pain medication were found in her blood as well as many other drugs, including cocaine and oxy-codone. There was nothing to suggest that the death was intentional.

Krieger, who had no prior criminal record, was charged with and pled guilty to distribution of a controlled substance. The charged offense carried no mandatory minimum and a statutory maximum of 20 years. The presentencing report recommended a sentencing range of 10-16 months. The government objected to the recommendation and argued instead that Krieger should be sentenced to a minimum of 20 years because her provision of the pain medication patch to her friend “resulted in” death.

The judge who sentenced Krieger stated that he be-lieved she deserved a significant sentence, but not 20 years. He said, “Krieger, while convicted of distribu-tion of diverse amounts of narcotics, is being sen-tenced for homicide.”

The judge made it clear that he was sentencing Krieger to 20 years because he felt he had no choice or discre-tion, but specifically noted that he otherwise would have been inclined to issue a shorter sentence. The judge pointed out that the average length of incar-ceration for defendants convicted for distributing the same drug Krieger gave her friend (where death did not result) was just seven months.

Krieger appealed her sentence, but lost in the 7th Cir-cuit Court of Appeals, which reluctantly upheld the 20-year sentence. When the U.S. Supreme Court agreed to consider the case for possible review, FAMM filed an amicus brief in collaboration with counsel of record, Daniel R. Ortiz and Toby J. Heytens of the University

of Virginia School of Law Supreme Court Litigation Clinic and a team of attorneys (see below). FAMM’s brief explains why the facts that caused a death must be an offense element, not simply a sentencing factor, when triggering a 20-year mandatory minimum.

On September 27, the high court decided to not accept the case for review, but the legal issues Krieger raises are still important. Currently there is federal legislation pending in Congress to classify certain drugs in a way that would expand the number of people facing severe mandatory minimums of 20 years up to life if serious bodily injury or death results from their use – includ-ing synthetic marijuana and “bath salts.” (See page 9 for more information.) FAMM is working diligently in opposition to these mandatory sentencing provisions.

Many thanks to the team of attorneys who advised FAMM and the counsel of record on this amicus brief, including David T. Goldberg, Donahue & Goldberg LLP, New York, N.Y.; John P. Elwood, Vinson & Elkins LLP, Washington, D.C., Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C., Peter Goldberger, Ardmore, Penn., and Margaret Colgate Love, Washington, D.C. FG

the U.S. Supreme Court will not hear Krieger, but FAMM’s amicus brief raises important issues, especially since Congress is considering expanding this mandatory sen-tencing law.

14 FAMMGram Fall 2011

Orville Lee Wollard (Florida)

IN 2008, 53-year old Orville Lee Wollard had a good job as a human resources manager at Sea World, was earning his master’s degree and living happily with his wife and two daughters in Florida. Trouble started when his youngest daughter began dating an older boy with a bad reputa-

tion. Eventually, her boyfriend began physically abusing her. Lee did his best to help his daughter, counseling her and calling the police, but he and the authorities were unable to help.

One afternoon Lee received a panicked call from his wife and rushed home to find the boy-friend had just given his daughter a black eye. When Lee told him to leave, the boy attacked him, ripping out Lee’s stitches from a recent surgery, and ran off with his daughter. Hours

later they returned and the boy began shoving Lee’s daughter around their home. Angry and scared for his family’s safety, Lee took his legally registered pistol and confronted the boy in the living room, again asking him to leave. After the boy punched a hole in the wall, Lee fired a bullet into the wall to scare him. No one was hurt and the boy finally left.

Several days later, Lee was arrested and charged with possessing and discharging a firearm. He spent a year in county jail on a $285,000 bond and pled not guilty, believing he was in the right to defend his family with his legally registered firearm.

What sentence do you think Lee should have received?

The jury, rejecting Lee’s self-defense claim, found him guilty, triggering Florida’s 20-year mandatory minimum for aggravated assault with a weapon. Despite pleas from two officers involved in Lee’s case, the judge had no choice but to sentence Lee to two decades behind bars. The judge said:

This [sentence] is obviously excessive…if it weren’t for the mandatory minimum…I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of the event, but I think I am duty-bound to apply the law as it has been enacted by the legislature.

Lee’s incarceration has been devastating for his family. Their home went into foreclosure and the family was forced to split up and live in different states.

Cost of incarceration: $ 500,000

is justice being served?

Are you or a loved one serving a mandatory sentence in federal or state prison? If so, we need you to help to show the human face of sentencing injustice. Please request a profile form from FAMM, 1612 K St., N.W., Suite 700, Washington, d.C., 20006.

tammi Bloom (Federal)

tAMMI WAS BORN and raised in Miami and got mar-ried when she was 18. She earned her degree as a licensed practical nurse in 1986 and was employed by health care providers and Florida hospitals. Tammi was happily raising her two children and working in a field she cared deeply about.

However, without her knowledge, Tammi’s husband of 15 years was dealing cocaine, primarily from the apartment he shared with his mistress. On the day Tammi’s husband and his mistress were arrested, police also searched Tammi’s home. They found cocaine, crack and drug ledgers, well hidden in a septic tank in the backyard, and three guns in an area of the house used by Tammi’s husband.

A confidential informant told authorities that Tammi was present at one of the two cocaine sales her husband conducted at the Miami house and that Tammi’s job was to count the money from her husband’s transactions. Tammi denied knowledge of her husband’s mistress or his cocaine business, aside from a small bag of cocaine in her husband’s nightstand. However, she was held accountable for all of the drugs found in the search and those sold by her husband: 2.41 kilograms of cocaine and 510.05 grams of crack.

What sentence do you think Tammi should have received?

Although the court recognized Tammi’s minor role, she received the longest sentence of anyone convicted in the conspiracy. Her sentence was increased because of her husband’s guns and because she testified to her innocence at trial. With no criminal record, Tammi’s federal sentencing guideline range was 235-293 months and the judge sentenced her at the lower end to 19 years and 7 months. In 2009, Tammi’s sentence was reduced by four years under the crack amend-ment. She is now eligible for release in 2012.

When Tammi was sentenced, her children were 11 and 13 years old and Tammi’s elderly mother became their primary caretaker. They have now grown into adult-hood without their mother.

Cost of incarceration: $532,000, reduced to $384,000 due to reforms.

Orville Lee Wollard

tammi Bloom

15 FAMMGramFall 2011

FAMM in the news

Washington Times June 9, 2011

Second Amendment injustice

“What is beyond debate is that when judges are pre-vented from applying sentences that are appropriate to the unique circumstances of each case, injustice is inevitable. And when the constitutional right to bear arms is at stake, violations of the bedrock tenet of American justice - that the punishment should fit the crime and the offender - are all the more intol-erable,” write Julie Stewart, FAMM president.

The Philadelphia Daily News May 27, 2011

Mandatory-minimum law led to surge in federal inmates, spending

“Congress thought mandatory-minimum-sentencing laws would solve the drug problem, but instead they have packed federal prisons with drug offenders who are not the kingpins they intended to catch,” said Julie Stewart, president of FAMM.

Boston Globe September 21, 2011

Sentencing guidelines for nonviolent drug offenders debated

“We treat low-level drug offenders and addicts the same as drug kingpins, sometimes even worse,’’ said Barbara Dougan, project director for FAMM.

outreach

FOR MANy yeARS FAMM has spoken at the Congressional Black Caucus Foundation’s Annual Legislative Conference in Washington, D.C. about the need to reform federal crack cocaine laws. This year, it was different: we had something to celebrate!

On September 22, Jennifer Seltzer Stitt, FAMM’s federal legislative af-fairs director, accepted an award from Rep. Maxine Waters (D-Calif.) in recognition of achieving that long-talked about goal – the historic reform of federal crack cocaine sentencing laws. In addition to FAMM, 11 other individuals and organizations were honored for their role in convincing President Obama, Congress and the U.S. Sentencing Commission that the crack cocaine disparity was unjust.

Awardees included Karen Garrison, FAMM’s office assistant and mother of Lawrence and Lamont Garrison; Serena Nunn, a FAMM member whose 15 ½-year sentence was commuted by President Clinton in 2001; Professor Charles Ogletree; Kara Gotsch, The Sentencing Project; Nkechi Taifa, Open Society Institute; Jasmine Tyler, Drug Policy Alliance; Kemba Smith, president of the Kemba Smith Youth Foundation and her parents, Gus and Odessa Smith.

Karen spoke mov-ingly about her twin sons, both of whom received sentence reductions because of these hard-won reforms. Jennifer talked about what it took to achieve legislative reform and how FAMM mem-bers engaged in the legislative process and told their stories to help convince lawmakers of the need for change. Finally, Jennifer told the audience that FAMM supports Rep. Waters’ bill to repeal all federal mandatory minimum laws.

Congressional Black Caucus Foundation honors FAMM

top: CBCF awardees with Rep. Waters; FAMM’s Karen Garrison (l) and Jennifer Seltzer Stitt (r).

Politico June 16, 2011

holder tacks left at dOJ

“It’s the first time in over 10 years that an attorney general had come to speak before the Sentencing Commission,” said Jennifer Seltzer-Stitt of FAMM. “It sends a strong signal that this is something that he cares about. … He is willing to consider criminal justice as something that is both fair and strict.”

Reason magazine July 2011

Conservatives lead a movement toward “tough and smart” sentencing policies

“We are in the early stages of a sentencing revolu-tion. Across the country, states seem to be racing each other to cast off their failed, budget-draining mandatory sentencing regimes in favor of smart-er, more efficient alternatives. Surprisingly, this movement is being spearheaded by conservatives,” writes Julie Stewart, FAMM president.

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sentences that fit. Justice that works.FAMILIeS AGAINSt MANdAtORy MINIMUMS