National Organization for the Reform of Marijuana Laws (NORML)

1001 Connecticut Ave., NW Suite 1010 Washington, D.C. 20036

NATLNORML@AOL.COM - FROM: Rob Kampia, Chapter Coordinator

RE: Analysis of drug-related provisions in the crime bill

DATE: September 15, 1994

Large portions of this analysis were derived from the crime bill analysis produced by the American Civil Liberties Union (ACLU) on September 13, 1994.

Eric Sterling, president of the Criminal Justice Policy Foundation, helped proofread and edit this analysis.

A big thank-you goes out to the ACLU and Mr. Sterling for their help in preparing this.

The full text of the crime bill that finally passed can be found on pages H8772 - H8867 of the Congressional Record dated Sunday, August 21, 1994. The vote tallies on both the "rule" (see below) and the actual bill in the House can be found on pages H8967 - H8968 and H9005. The vote tallies in the Senate can be found in the Congressional Record dated Thursday, August 25.

Please note that the crime bill is a federal bill and thus does not directly change state laws. Because approximately 95% of defendants are processed in the state and local criminal justice systems, this crime bill will not have a direct impact on how most criminal cases are handled.

* * *

In November 1993, the U.S. Senate passed a $22 billion crime bill that contained hundreds of widely criticized, "tough on crime" provisions, including a ban on "assault weapons." This bill was sent to the U.S. House of Representatives as H.R. 3355. On April 21, 1994, the House passed H.R. 4092-a $28 billion bill that wasn't as bad as the Senate's and without a ban on assault weapons-by a vote of 285 to 141.

Because the Senate and House passed different bills, leaders from the Senate and House Judiciary Committees met in what is called a "conference committee" to reconcile the differences between the bills. The 19-member conference committee (10 House members and 9 Senators) met for the first time on June 16 and didn't report a bill back to the two houses until the beginning of August. The conference committee's report (the new bill) differed from both the Senate and House versions in a number of ways, including a new total expenditure of $33.5 billion.

On August 11 the House defeated the "rule"-which would have allowed the House to vote on the actual bill-by a vote of 225 to 210. The 225 votes that killed the conference report consisted of 167 Republicans who either wanted to embarrass the President (who very much wanted to sign a crime bill) or opposed the ban on "assault weapons," as well as 58 Democrats who opposed the bill because of either the ban on "assault weapons" or the dozens of new death penalties. (11 Republicans and 199 Democrats voted for the "rule.")

This version of the bill-which the National Rifle Association was primarily responsible for defeating-was the best version of the crime bill.

During the next few days a new Senate/House conference committee met to devise a new compromise bill. The bill that they reported back to the House and Senate was $3.3 billion cheaper (for a total cost of $30.2 billion) and among other changes excluded the retroactivity provision for the "safety valve." (See the discussion on the "safety valve" below.)

On August 21, the House passed the bill by a vote of 235-195. (189 Democrats and 46 Republicans voted for the bill, 64 Democrats and 131 Republicans voted against the bill, and 4 Democrats and 1 Republican did not vote.)

On August 25, the Senate passed the bill by a vote of 61 to 38. (54 Democrats and 7 Republicans voted for the bill, 2 Democrats and 36 Republicans voted against the bill, while 1 Republican did not vote.)

President Clinton signed the crime bill on September 13.

* * *

The crime bill spending totals $30.2 billion over 6 years to be derived from the savings from cutting 252,000 federal jobs. The money will be spent on the general categories of:

- Police: $13.4 billion to hire and train thousands of new officers.

- Prisons: $9.9 billion to build new prisons, boot camps, and facilities to free space for violent offenders.

- Prevention: $5.5 billion for grants for anti-gang activities and programs to combat violence against women.

- Anti-drug efforts: $1.4 billion for drug courts and drug treatment for inmates.

The major provisions in the crime bill that are relevant to the marijuana laws are:

- Title II-Prisons

- Title VI-Death Penalty

- Title VII-Mandatory Life Imprisonment for Persons Convicted of Certain Felonies ("Three Strikes and You're Out")

- Title VIII-Applicability of Mandatory Minimum Penalties in Certain Cases ("Safety Valve," not Retroactive)

- Title XXVII-Presidential Summit on Violence and National Commission on Crime Prevention and Control (with a "Drug Task Force")

In some ways, the crime bill that passed was better than anything NORML could have hoped for in November or April. The provision on prisons places a priority on incarcerating violent offenders, the "three strikes and you're out" provision allows "serious" nonviolent drug offenses to count towards a maximum of one of the three strikes, U.S. Representative Don Edwards (D-California) was able to insert the crime commission provision during the conference committee negotiations, and the "safety valve" for mandatory minimums was left intact.

The most disappointing features of the bill are the death penalty provisionfor drug "kingpins" even when death does not result from the crime, as well as the fact that the retroactivity provision for the "safety valve" was removed during the second round of conference committee negotiations.

In regard to the latter point, U.S. Rep. Barney Frank (D-Massachusetts) and U.S. Rep. Mike Synar (D-Oklahoma) worked very hard in the second conference committee to retain the retroactivity clause, while U.S. Rep. John Kasich (R-Ohio), U.S. Rep. Rick Lazio (R-NY), and U.S. Rep. Michael Castle (R-Delaware) opposed it. Frank and Synar should be praised for their valiant effort.

* * *

TITLE II-PRISONS (pages H8778 - H8779)

The Attorney General may make grants to states (or multi-state regions) to construct, develop, expand, modify, operate, or improve correctional facilities, including boot camps and other alternative correctional facilities. To be eligible to receive a grant, a state must submit an application to the Attorney General.

The bill authorizes the following funds to be appropriated for prisons:

- $175 million for fiscal year 1995;

- $750 million for fiscal year 1996;

- $1.0 billion for fiscal year 1997;

- $1.9 billion for fiscal year 1998;

- $2.0 billion for fiscal year 1999; and

- $2.07 billion for fiscal year 2000.

The principal purpose of the prison grant program is to create cell space to lock up violent offenders. The Attorney General will be writing regulations for how this money can be used, and she is subject to being influenced to stress that proper management of those convicted of crimes (e.g., through community corrections, supervised probation, house arrest, etc.) is a better way to free up prison cells than investing in the difficult task of locating sites, hiring architects, building new prisons, and so forth.

Fifty percent of the total amount of funds appropriated each year shall be made available for "Truth in Sentencing Incentive Grants." To be eligible to receive such a grant, a state must meet nine criteria. Criterion four requires the states to have a comprehensive correctional plan "which includes diversion programs, particularly drug diversion programs, community corrections programs ... prisoner rehabilitation and treatment programs, prisoner work programs, job skills programs, education programs, a pre-release program, post-release assistance. ..." This language is important for helping to keep nonviolent marijuana offenders out of prison or giving them shorter sentences.

Additionally, a state must:

- have laws which require that persons convicted of violent crimes serve not less than 85% of the sentence imposed; or

- since 1993 has increased the percentage of violent offenders sentenced to prison, has increased the average prison time and percentage of sentence served by violent offenders, and has a law requiring that a person who is convicted of a violent crime shall serve not less than 85% of the sentenced imposed if the person has a previous violent crime or serious drug offense conviction.

Any money not used in the "truth in sentencing" grant program is available to be used in the first, general violent offender program. Many states are unlikely to change their laws to comply with the "truth in sentencing" program just to get the federal money if they can still get the money in another program. Some states will change their laws to get priority on the money, but their long-term costs for operating prisons will be much greater than what they receive from the federal government.

The ACLU says that this "truth in sentencing" requirement will greatly exacerbate prison overcrowding, increase costs to taxpayers, and require substantial changes in the sentencing laws of most states.

NORML holds that the "truth in sentencing" requirement could be a blessing in disguise, as a requirement that encourages states to increase the percentage of violent offenders in prison could also encourage them to alter their drug laws to decrease the number of marijuana offenders in prison.

It must be recognized that the indiscriminate expansion of the prison system provides a disincentive to release the 10,000s of inmates who are serving time on marijuana convictions. If an expansion of the prison system is not funded there will be a need to release nonviolent marijuana law offenders as more and more violent offenders are incarcerated.

* * *

TITLE VI-DEATH PENALTY (page H8816)

The crime bill expands the federal death penalty from two crimes to more than 50 crimes, including crimes that do not involve murder-espionage, treason, major drug trafficking even when no death results from the crime, and attempted murders by "drug kingpins." The bill federalizes homicides that in many cases can be prosecuted capitally under state law.

Additionally, this provision authorizes the federal government to execute individuals who live in states (such as New York) that have no death penalty.

Finally, authorizing the death penalty for non-homicidal crimes is unconstitutional, as previous court opinions have found that the Eighth Amendment limits the reach of the death penalty to crimes involving murder.

The crime bill authorizes the death penalty for a defendant who has been found guilty of:

- being a part of a continuing criminal enterprise involving 60,000 or more marijuana plants or 60,000 kilograms of marijuana even when no death results from the crime; or

- attempting to kill, or knowingly directing, advising, authorizing, or assisting another to attempt to kill someone as part of a continuing criminal enterprise involving 30,000 or more marijuana plants or 30,000 kilograms of marijuana.

Note the following:

1. Individuals can be convicted solely on the testimony of a government informant. The testimony of informants is notoriously unreliable because of the incentive they have to obtain convictions: Informants are either paid a reward by the government, or have been arrested themselves on drug charges and are usually required to testify to convict others to reduce their own sentences. Hence, informants have a strong incentive to lie in order to obtain convictions.

2. The prosecution need not actually seize any marijuana for the death penalty to be imposed.

3. Drug cases involving killings are already subject to the death penalty under 21 USC 848(e).

4. Because the death penalty is applied in "continuing criminal enterprises, " an individual whom an informant says was responsible for growing 3,000 marijuana plants every year for 20 years is eligible to receive the death penalty.

5. The 1 plant = 1 kilogram = 1,000 grams = 2.2 pounds formula is not based on facts. NIDA's top marijuana researcher, Dr. Mahmoud ElSohly, has never been able to grow a plant that would yield 1,000 grams.

6. Individuals who are convicted of being responsible for more than 30,000 marijuana plants or 30,000 kilograms of marijuana already receive mandatory life prison sentences.

* * *

TITLE VII-MANDATORY LIFE IMPRISONMENT FOR PERSONS CONVICTED OF CERTAIN FELONIES (pages H8822 - H8823)

This provision, known as "three strikes and you're out," mandates life imprisonment without parole for persons convicted of certain felonies. Those who are convicted on three separate instances of committing "serious" violent crimes or "serious drug offenses" will receive mandatory life prison sentences if the third conviction is on the federal level and is a violent crime.

A "serious drug offense," which is defined as an offense that is punishable by a minimum of 10 years imprisonment, can count as either the first or second strike (but not both, and not the third). One or both of the first two strikes must be a violent offense, and the third strike must be a violent federal conviction. (The first two convictions can be state or federal convictions.)

The possession or trafficking of 1,000 kilograms (2,200 pounds) of marijuana, or even growing 1,000 plants or seedlings regardless of their weight or sex counts as a strike.

The ACLU says that this provision is troubling because it categorizes strikes based upon the amount of drugs involved as opposed to culpability.

As a result, a low-level courier in a drug operation who is transporting a large amount of drugs faces the same threat of life imprisonment as the high level manager.

The ACLU says the legislation is completely unnecessary, in part because the federal Sentencing Guidelines already mandate tough, non-parolable sentences of 25 or 30 years to life for violent recidivist or "career" offenders.

Of course, NORML believes that marijuana offenses should not have been included as counting towards any of the three strikes. The solution is to end the prohibition of marijuana.

* * *

TITLE VIII-APPLICABILITY OF MANDATORY MINIMUM PENALTIES IN CERTAIN CASES (page H8823)

This provision, commonly known as the "safety valve," allows certain low-level, nonviolent drug offenders who would have been given mandatory minimum sentences to instead be sentenced under the federal Sentencing Guidelines as long as the guideline is at least a 2-year sentence. Hence, certain federal defendants will be eligible to avoid mandatory minimum sentences if they meet the following five criteria:

1. Defendant has no more than 1 criminal history point (no criminal record more serious than a misdemeanor conviction for which a maximum of a 60-day sentence was imposed); and

2. defendant did not use violence or a dangerous weapon or induce another to use violence or a dangerous weapon; and

3. the offense did not result in death or serious bodily injury; and

4. defendant was not an organizer, leader, manager, or supervisor; and

5. defendant has provided the government all information concerning the offense prior to sentencing. The fact that the defendant has no relevant or useful information or that the government is already aware of the information shall not preclude the court from deciding that he or she has met this requirement.

The ACLU is troubled by the last provision that requires defendants to provide the government with information on other culpable individuals as a condition of qualifying for the exemption.

Mandatory minimum sentences for marijuana offenses on the federal level are as follows:

- 100 - 999 marijuana plants or kilograms: 5-year mandatory minimum

- 1,000 or more marijuana plants or kilograms: 10-year mandatory minimum

This provision is prospective only, i.e., it cannot be applied retroactively to individuals who are already serving mandatory minimum sentences. This will create a disparity in sentencing-one set of sentences for those already incarcerated, and another system of justice for those yet to be sentenced.

Moreover, allowing the "safety valve" to be retroactive will free prison space for truly violent offenders. NORML, Families Against Mandatory Minimums (FAMM), the ACLU, the Criminal Justice Policy Foundation and others will be working for the retroactive application of this provision in 1995.

* * *

TITLE XXVII-PRESIDENTIAL SUMMIT ON VIOLENCE AND NATIONAL COMMISSION ON CRIME PREVENTION AND CONTROL (pages H8851 - H8852)

The crime bill establishes a commission to be known as the "National Commission on Crime Control and Prevention" after the President convenes a national summit on violence in America. (The bill does not specify when the President must convene this summit.) The commission shall be composed of 28 members appointed as follows (assuming that the commission will not be convened before January 1995 and the House and Senate remain in democratic control):

- 10 persons by the President, not more than 6 of whom shall be of the same major political party. (President Bill Clinton appoints 6 Democrats and 4 Republicans.)

- 5 by whoever replaces Senate Majority Leader George Mitchell (D-Maine) in conjunction with Senate Judiciary Committee Chairman Joseph Biden(D-Delaware).

- 4 by Senate Minority Leader Bob Dole (R-Kansas) in conjunction with the ranking minority member on the Senate Judiciary Committee, Orrin Hatch (R-Utah).

- 5 by Speaker of the House Tom Foley (D-Washington) in conjunction with House Judiciary Committee Chairman Jack Brooks (D-Texas).

- 4 by the new House Minority Leader, who will probably be Newt Gingrich (R-Georgia), and the ranking minority member on the House Judiciary Committee, probably Carlos Moorhead (R-California).

The commission shall establish committees and task forces from among its members for the examination of specific subject areas including (1) crime and violence generally, (2) the causes of the demand for drugs, (3) violence in schools, and (4) violence against women.

At least 1 member appointed by the President, at least 2 members appointed by the Senate, and at least 2 members appointed by the House shall be persons well-qualified to participate in the commission's examination of the subject area of the causes of the demand for drugs, with education, training, expertise, or experience in such areas as addiction, biomedicine, sociology, psychology, law, and ethnography and urban poverty (including health care, housing, education, and employment).

The same basic requirement of a minimum of 5 qualified members applies to the subject areas of crime and violence generally, violence in schools, and violence against women.

The stated purposes of the commission are 11-fold, including: (1) to develop a comprehensive proposal for preventing and controlling crime and violence in the United States, including cost estimates for implementing any recommendations made by the commission; (2) to bring attention to successful models and programs in crime prevention and control; (3) to recommend means of utilizing criminal justice resources as effectively as possible, including targeting finite correctional facility space to the most serious and violentoffenders; and so forth.

In addressing the subject area of the causes of the demand for drugs, the activities of the commission shall include the following:

(1) examining the root causes of illicit drug use and abuse in the United States, including compiling existing research regarding those root causes;

(2) evaluating federal, state, and local laws and policies on the prevention of drug abuse, control of unlawful production, distribution and use of controlled substances, and the efficacy of sentencing policies with regard to those laws;

(3) analyzing the allocation of resources among interdiction, enforcement, education, and treatment and rehabilitation;

(4) analyzing current treatment and rehabilitation methods and making recommendations for improvements;

(5) identifying any existing gaps in drug abuse policy that result from the lack of attention to the root causes of drug abuse;

(6) assessing the needs of government at all levels for resources and policies for reducing the overall desire of individuals to experiment with and abuse illicit drugs; and

(7) making recommendations regarding necessary improvements in policies for reducing the use of illicit drugs in the United States.

The President shall designate a member of the commission to chair the commission. The commission shall have office facilities, a staff, and may hold public hearings.

No later than 2 years after the date the commission is fully constituted shall the commission submit a detailed report to Congress and the President containing its findings and recommendations. The commission shall terminate 30 days after the submission of its report.

The budget of the commission is $1.0 million for fiscal year 1996.

Eric Sterling notes that the members of the commission are neither researchers who start without a bias nor jurors who will listen to arguments from two opposing sides. Commissions are highly political-and the results of most commissions are disregarded.

Their recommendations may be used to bolster an argument, of course, but such recommendations don't often have much power in Congress.

* * *

SOURCES:

- Congressional Record, Sunday, August 21, 1994

- American Civil Liberties Union

- Eric Sterling, Criminal Justice Policy Foundation

- Time magazine

- The Washington Post

- The Washington Times

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