Reason Magazine - Topics > Sentencing

The Long and the Short of Prison Sentences

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 15:07:00 EDT

New York Times legal writer Adam Liptak digs a little deeper into the story of America's astonishingly high incarceration rate and finds that the main explanation is longer sentences, as opposed to more frequent sentences or a higher crime rate:

People who commit nonviolent crimes in the rest of the world are less likely to receive prison time and certainly less likely to receive long sentences. The United States is, for instance, the only advanced country that incarcerates people for minor property crimes like passing bad checks...
Efforts to combat illegal drugs play a major role in explaining long prison sentences in the United States as well. In 1980, there were about 40,000 people in American jails and prisons for drug crimes. These days, there are almost 500,000.
Those figures have drawn contempt from European critics. "The U.S. pursues the war on drugs with an ignorant fanaticism," said [prison researcher Vivien] Stern of King's College....
It is the length of sentences that truly distinguishes American prison policy. Indeed, the mere number of sentences imposed here would not place the United States at the top of the incarceration lists. If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States. But American prison stays are much longer, so the total incarceration rate is higher.

Burglars in the United States serve an average of 16 months in prison, according to Mr. Mauer, compared with 5 months in Canada and 7 months in England.

The longer U.S. sentences are due largely to legislators who pass mandatory minimum statutes and judges (frequently elected) who err on the side of severity. Both groups are responding to a perceived public demand for tough-on-crime policies.

While any sentence for nonpredatory "criminals" such as drug offenders is too long, it's less clear whether U.S. penalties for crimes such as burglary and robbery are excessive. As Liptak notes, "there is little question that the high incarceration rate here has helped drive down crime," whether through incapacitation, deterrence, or both. Liptak quotes former federal judge Paul G. Cassell, a conspicuous critic of draconian drug sentences, who writes that "a good case can be made that fewer Americans are now being victimized" as a result of harsher sentences. Cassell says the evidence "should give one pause before too quickly concluding that European sentences are appropriate."

In a column last month, I discussed the Pew Center's recent report on incarceration rates, upon which Liptak draws heavily. Several years ago in reason, I noted criminologist John DiIulio's acknowledgment that the cost-effectiveness of incarceration depends on the system's ability to distinguish between predatory criminals and "drug-only" offenders.

Acquittal First, Then Punishment

jsullum@reason.com (Jacob Sullum) — Fri, 11 Apr 2008 15:54:00 EDT

In a recent series of cases that led it to declare federal sentencing guidelines advisory rather than mandatory, the U.S. Supreme Court emphasized that it's the jury's responsibility, not the judge's, to determine the facts on which a defendant's punishment hinges. Allowing judges to make factual findings that trigger automatic sentence enhancements, it ruled, violates the Sixth Amendment right to trial by jury. At the same time, the Court has held that judges may rely on "the entire range of conduct" alleged by prosecutors, including counts rejected by the jury, when they impose sentences. The Court recently passed up an opportunity to revisit the 1997 decision in which it announced that rule, which is pretty hard to reconcile with the principle that people should be punished only for crimes of which they're been convicted.

At the end of last month, the Supreme Court declined to hear an appeal by Mark Hurn, a Madison, Wisconsin, man who was arrested in 2005 after a police search of his home found 450 grams of crack cocaine, 50 grams of powder cocaine, and $38,000 in cash. Hurn admitted selling cocaine but insisted the crack belonged to other people who lived with him. The jury convicted him of cocaine powder possession, which carried a penalty of two to three years, but acquitted him of crack possession. The judge nevertheless punished him as if he'd been convicted of the crack charge, imposing an 18-year sentence. The U.S. Court of Appeals for the 7th Circuit conceded that Hurn's sentence was "almost entirely" based on the crack charge that the jury had rejected (which also illustrates the arbitrary disparity in punishment between smoked and snorted cocaine) but approved the punishment anyway, citing the "entire range of conduct" rule.

[via the Drug War Chronicle]

Americans: Stars in Bars

jsullum@reason.com (Jacob Sullum) — Wed, 05 Mar 2008 07:00:00 EST

For Americans tired of hearing how we lag behind other developed nations in teaching children math, science, and reading, a new report highlights an area where the United States is indisputably a world leader. According to the Pew Center on the States, the U.S. has a higher incarceration rate than any other country. In your face, Finland!

I exaggerate the response to the report slightly. But some conservatives did react to the news that one out of 99 American adults is behind bars with equanimity, if not pride. "When I see a headline about a record incarceration rate, I'm glad," wrote National Review Senior Editor Ramesh Ponnuru on his Washington Post blog. "Aren't you?"

No, I'm not. If the U.S. were locking up more people than other countries simply because it had a higher crime rate, the number of prisoners in itself would not necessarily be cause for concern. The problem is that it's locking up many people for longer than is appropriate and many people who do not belong in prison at all, including half a million drug offenders.

The Pew Center may not be right that the United States has a higher incarceration rate than countries like China and Cuba, whose official figures should be viewed with skepticism. Still, the U.S. undeniably imprisons a much larger share of its population than other democracies: about 750 per 100,000 people, more than twice the rates in Ukraine, Estonia, and Latvia; more than five times the rates in Spain, Scotland, and the Netherlands; and more than 10 times the rates in Denmark, Italy, and Finland.

But so what? Maybe we have a bigger crime problem, a more sensibly tough response to it, or both. "The fact that we have a large prison population by itself is not a central problem," the criminologist James Q. Wilson told The Washington Post, "because it has contributed to the extraordinary increase in public safety we have had in this country."

When the government incarcerates people who are guilty only of consensual "crimes," however, it wastes scarce prison space that could be used to incapacitate predatory criminals. That compromises public safety rather than enhancing it.

The Bureau of Justice Statistics reports that drug offenders account for about 25 percent of local jail inmates, 21 percent of state prisoners, and 55 percent of federal prisoners. Since 1980 the number of drug offenders in state prisons has increased by 1,200 percent, more than four times the increase in violent offenders.

Drug warriors tend to conflate these two categories. "These offenders are often violent criminals who are likely to repeat their criminal activities," Attorney General Michael Mukasey said in a February 25 speech to the Fraternal Order of Police, describing the prisoners who could benefit from retroactive changes to the federal sentencing guidelines for crack offenses, the first of whom were freed this week.

According to the U.S. Sentencing Commission, however, only one in 10 federal crack offenses involves violence or the threat of violence. Mukasey obscured this point by saying "nearly 80 percent of those eligible for retroactivity have a prior criminal record."

A prior record is not the same as a history of violence. Research conducted by criminologist John DiIulio, economist Anne Morrison Piehl, and sociologist Bert Useem in the late 1990s found that many, if not most, people sentenced for drug crimes in New York, Arizona, and New Mexico were "drug-only offenders," meaning the only crimes they'd ever committed involved the voluntary exchange of politically incorrect intoxicants for money.

As James Q. Wilson himself has observed, imprisoning those people does not reduce the total number of drug dealers, since others quickly take their place. Worse, it leaves less prison space for the robbers, rapists, and murderers who represent a genuine threat to public safety. With limited resources, politicians face an unavoidable but rarely acknowledged tradeoff between being tough on drugs and being tough on crime.

Are U.S. Incarceration Policies Worse Than China's?

jsullum@reason.com (Jacob Sullum) — Fri, 29 Feb 2008 12:04:00 EST

I know what you're thinking: Two posts about the new report on the U.S. incarceration rate are not enough; we really need at least three. Your wish is my command. I actually do have a couple points to add to what Ron Bailey and Radley Balko have already said.

First, in the process of criticizing the U.S. criminal justice system, whose numbers are pretty reliable, let's be careful not to minimize the oppressive policies of countries like China and Cuba, whose numbers may be fictitious. In its report, the Pew Center on the States says:

The United States incarcerates more people than any country in the world, including the far more populous nation of China. At the start of the new year, the American penal system held more than 2.3 million adults. China was second, with 1.5 million people behind bars.

The Washington Post highlights the same comparison in the second paragraph of its story about the report, saying "the United States leads the world in both the number and percentage of residents it incarcerates, leaving far-more-populous China a distant second."

The source for the Chinese estimate is the International Centre for Prison Studies at King's College in London, which in turn relied on the Chinese government's numbers. I don't think I'm going out on a limb by suggesting that we should be skeptical of anything a totalitarian-cum-authoritarian government says about touchy, potentially embarrassing issues like how many of its citizens it imprisons. The official number at the end of 2005 was 1,565,771, but the King's College report says that does not include "more than 500,000 serving administrative detention in re-education-through-labour camps," according to the Chinese government's own count; "350,000 in a second type of administrative detention...for drug offenders and prostitutes," according to a U.S. State Department estimate; or pre-trial detainees, whose number "is not known but has been estimated at about 100,000." Assuming those numbers are correct (a big assumption), "the total prison population in China is about 2,500,000." That still gives the U.S. a higher incarceration rate, but not a higher total number of prisoners. And if the Chinese government actually had a few million people in re-education camps, instead of the half a million it claims, how would we know?

My second point is related to the first: China's incarceration policies are a scandal not because of the sheer number of people it locks up but because they are locked up unjustly, often for "crimes" like criticizing the government. Likewise, I have to partly agree with criminologist James Q. Wilson, who tells the Post, "The fact that we have a large prison population by itself is not a central problem because it has contributed to the extraordinary increase in public safety we have had in this country." If the U.S. were locking up more people than other countries simply because it had a higher crime rate, the number of prisoners in itself would not necessarily be cause for concern. The problem is that it is locking up many people for longer than is appropriate and many people who do not belong in prison at all, including nearly half a million drug offenders. When the government locks up people who are guilty only of consensual "crimes," it wastes scarce prison space that could be used to incapacitate predatory criminals, thereby compromising public safety rather than enhancing it.

"The idea," says Rick Kern, director of the Virginia Criminal Sentencing Commission, "is to make a distinction between the people we're afraid of and the ones we're just ticked off at." He hastens to add: "Not that you shouldn't punish them. But if it's going to cost $27,500 a year to keep them locked up, then maybe we should be smarter about how we do it." People like Kern are far from contemplating the possibility that being ticked off at people over things like exchanging drugs or sex for money might not be a good enough reason to punish them at all. But at least they are beginning to understand the tradeoffs involved.

Back in 1999, I explained why a criminologist who used to say "let 'em rot" started saying "let 'em go."

The 9th Circuit Upholds the Freedom to Drink a Beer

jsullum@reason.com (Jacob Sullum) — Wed, 19 Dec 2007 12:49:00 EST

The U.S. Court of Appeals for the 9th Circuit recently rejected a probation requirement that would have forced Marcus Betts, a former TransUnion employee who pleaded guilty to fixing people's bad credit reports in exchange for bribes, to abstain from alcohol for three years. The court deemed the requirement an abuse of discretion, noting that it was not reasonably related to a legitimate criminal justice goal, as required by federal law:

No one suggests that alcohol played any role in Betts's crime. And there was no evidence that Betts had any past problems with alcohol. Under these circumstances, we think it impossible to say that the condition imposed bears a reasonable relationship to rehabilitating the offender, protecting the public, or providing adequate deterrence.
In so concluding, we join the other two circuits to have faced this precise question....

The statute permits a discretionary supervised release condition to be imposed only "to the extent that such condition...involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth" in sections 3553(a)(2)(B), (C), and (D). Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion. Liberties can be taken away during supervised release to deter crime, protect the public, and provide correctional treatment, but that is not why it was taken away in this case.

A PDF of the ruling is available here.

[Thanks to Eric Sterling, by way of Allen St. Pierre]

Mind the Gap

jsullum@reason.com (Jacob Sullum) — Wed, 19 Dec 2007 06:54:00 EST

In 1984 Congress established the U.S. Sentencing Commission and charged it with writing guidelines aimed at eliminating unjustified disparities in punishment for federal crimes. Two years later, Congress created a new unjustified disparity, passing a law that treated crack cocaine offenses far more harshly than offenses involving cocaine powder.

Recent decisions by the sentencing commission and the U.S. Supreme Court will slightly reduce that disparity. Congress should finish the job by eliminating a bizarre feature of U.S. drug policy that even prohibitionists have a hard time defending.

Federal law treats crack, a smokable form of cocaine, as if it were 100 times worse than cocaine powder, a snortable form of the same drug. Five grams of crack (less than a fifth of an ounce) triggers the same five-year mandatory minimum sentence as 500 grams (more than a pound) of cocaine powder. Fifty grams of crack (less than two ounces) is enough for a 10-year sentence, which requires five kilograms (more than 11 pounds) of cocaine powder.

This 100-to-1 ratio, which the sentencing commission copied in setting penalties for amounts of crack below, between, and above the mandatory minimum cutoffs, undermined an important goal of the sentencing guidelines, which were supposed to distinguish between major traffickers and small-time dealers. Under the penalties created by Congress, a retailer who converts a few grams of cocaine powder into crack, or a user possessing as few as 10 doses, can get a longer sentence than a wholesaler carrying a much larger quantity of powder.

Overall, sentences for offenses involving crack are three to six times longer than sentences for offenses involving the same amount of cocaine powder. This injustice has fallen disproportionately on blacks, who account for more than four-fifths of federal crack offenders but only a quarter or so of cocaine powder offenders.

The sentencing commission, having concluded that the 100-to-1 gap between crack and cocaine powder has no scientific basis, has been urging Congress to address the disparity since 1995. It also has tried to shrink the gap on its own, only to be overruled by Congress.

In May, however, the commission sent Congress an amendment that reduces the disparity, and this time Congress did not interfere. Last week the commission unanimously voted to make the change retroactive, meaning that 19,500 crack offenders currently in federal prison will be eligible for resentencing. On average, the commission estimates, they could receive a sentence reduction of 27 months, from 12.7 years to 10.4 years.

The day before the commission's decision on retroactivity, the Supreme Court ruled that judges may impose sentences below the range recommended by the federal guidelines based on their disagreement with the differential treatment of crack and cocaine powder. The case involved a crack dealer who was given a sentence of 15 years instead of the 19 to 22.5 years indicated by the guidelines.

In another decision issued the same day, the Court emphasized that appeals courts should review sentences that depart from the guidelines "under a deferential abuse-of-discretion standard." Both rulings elaborated on a 2005 decision in which the Court made the sentencing guidelines merely advisory after concluding that mandatory guidelines required judges to determine facts that automatically triggered longer sentences, thereby violating the Sixth Amendment right to trial by jury.

But the sentencing commission and newly empowered judges can do only so much to address the irrational, unjust disparity between crack and cocaine powder. Only Congress can change the mandatory minimum sentences required by statute.

Members of Congress have proposed bills that would shrink or eliminate the gap between crack and cocaine powder, but some want to do so partly by increasing the penalties for powder possession. Since there's no reason to believe cocaine sentences are insufficiently severe, this approach is a cop-out. Two decades after fear of a new drug fad drove Congress to establish draconian crack sentences, legislators should not let fear of seeming soft on drugs stop them from correcting that mistake.

Bush Discovers That Drug Sentences Can Be Too Long

jsullum@reason.com (Jacob Sullum) — Mon, 17 Dec 2007 13:54:00 EST

In a column about last week's developments in federal sentencing, New York Times legal writer Adam Liptak notes that even President Bush has come out in favor of shorter sentences for drug offenders. Well, for one drug offender. And not much shorter:

Last week's most curious sentencing decision came from Mr. Bush, who commuted the sentence of Michael D. Short a few hours after the Supreme Court ruled. It was only the fifth commutation of his presidency, and the first involving crack cocaine.
Mr. Short had served 15 years for aiding a crack cocaine ring. Mr. Bush, without explanation, ordered him released in February, a little more than a year before he was to get out anyway.
Margaret Colgate Love, the pardon lawyer at the Justice Department for most of the 1990s, seemed eager to read a lot into the decision.
"The president's personal intervention to cut short Short's prison term sends a clear signal that he, too, is concerned about the excessive length of crack sentences," Ms. Love said. The decision, she said, "puts him on the side of the courts and the angels, and in opposition to Congress and his own Justice Department."
On the other hand, she conceded, maybe it was just a random act of kindness.

I wrote about crack sentences last spring and about Bush's meager clemency record last summer.

More Good News on Crack Sentences

jsullum@reason.com (Jacob Sullum) — Tue, 11 Dec 2007 16:28:00 EST

Yesterday the Supreme Court said judges who disagree with the way crack offenses are treated under the federal sentencing guidelines have the discretion to impose penalties closer to those recommended for offenses involving equivalent amounts of cocaine powder. Today the U.S. Sentencing Commission decided to retroactively apply recent guideline changes that shrank the disparity between crack and cocaine powder. That means crack offenders sentenced prior to November 1, when the changes took effect, can apply for resentencing. Families Against Mandatory Minimums says retroactivity applies to nearly 20,000 prisoners, about 2,250 of whom could be eligible for release within a year.

Neither the Supreme Court ruling nor the sentencing commission's decision affects the five- and 10-year statutory mandatory minimums for crack offenses, which continue to treat smoked cocaine as if it were 100 times as bad as snorted cocaine. Only Congress can change those penalties.

Shorter Drug Sentences, Courtesy of the Supreme Court

jsullum@reason.com (Jacob Sullum) — Mon, 10 Dec 2007 14:34:00 EST

Speaking of crack sentences, today the U.S. Supreme Court, which two years ago declared the federal sentencing guidelines merely advisory, ruled by a 7-to-2 vote that judges are free to give defendants lower sentences than indicated by the guidelines because they disagree with the differential treatment of crack vs. cocaine powder. The decision does not apply to the mandatory minimum sentences set by statute, but it should result in shorter sentences for some crack offenders and smaller disparities in punishment between people caught with crack and people caught with cocaine powder.

Two other decisions issued today also will help ameliorate drug sentences. In one, the same seven-justice majority (with Alito and Thomas in the minority) said sentences that depart from the guidelines should be judged by "a deferential abuse-of-discretion standard." Applying this standard, the Court said a judge acted within his authority when he gave an entrepreneur who went straight after selling MDMA in college probation rather than the sentence of two and a half to three years recommended by the guidelines. In the third case, the Court unanimously held that receiving a gun in exchange for drugs does not amount to "using" a firearm in the course of a drug offense (which triggers a mandatory minimum sentence), although it had earlier held that receiving drugs in exchange for a gun does.

[via Orin Kerr at The Volokh Conspiracy]

Shorter Crack Sentences Take Effect

jsullum@reason.com (Jacob Sullum) — Mon, 05 Nov 2007 15:24:00 EST

The U.S. Sentencing Commission's guideline revisions shrinking the penalty gap between crack and cocaine powder took effect last week. (Amendments to the federal sentencing guidelines take effect automatically six months after they're approved by the commission unless they're overriden by Congress, which in this case took no action.) As a result of the changes, The Christian Science Monitor reports, "up to 4 in 5 people found guilty of crack-cocaine offenses will get sentences that are, on average, 16 months shorter than they would have been under the former guidelines." The commission has not decided yet whether to make the changes retroactive. If it does, says the Monitor, "more than 19,500 people now serving time for crack offenses could see their sentences reduced by an average of 27 months."

Families Against Mandatory Minimums makes the case for retroactivity here (PDF). Although the commission can reduce the sentencing disparity between crack and cocaine powder, only Congress has the power to change the five- and 10-year mandatory minimums that kick in for crack at one-hundredth the quantity they do for cocaine powder. My May column on why the disparity makes no sense is here.

Time After Time

jsullum@reason.com (Jacob Sullum) — Thu, 01 Nov 2007 15:15:00 EDT

In 2004 Katie Heath went to state prison for selling methamphetamine in Saline County, Illinois. After serving a year, she got out, got a job, went back to school, and started caring for her children again. Last year she was indicted on federal conspiracy charges based on the same drug dealing for which she had already served time. Although she cooperated with the federal investigation and signed a plea agreement, prosecutors gave her nothing in return, condemning her to a 20-year mandatory minimum sentence. That's 20 actual years, with no parole, for the same actions that got her a year in state prison. The federal judge assigned to Heath's case, Phil Gilbert, was so outraged that he refused to impose the sentence and ultimately recused himself from the case. "She obviously was trying to turn her life around, and then this federal indictment hits her with a 20-year mandatory minimum," Gilbert recently told WSIL, an ABC affiliate in southern Illinois. "It just raised a lot of questions of fairness." He called Heath "the poster child for what is wrong with the sentencing policy and the federal sentencing structure."

As things stand, defendants can escape a statutory mandatory minimum only by convincing prosecutors to certify that they have provided "substantial assistance" to the government. In effect, this power transfers sentencing discretion from judges to prosecutors, a point to keep in mind when you hear concerns about giving judges too much leeway in determining punishments. Excessive judicial discretion creates problems of its own, allowing wide disparities in the treatment of similar defendants. But at least judges are supposed to be neutral referees, rather than advocates for one side. In Heath's case, an appeals court upheld the prosecution's discretion to give her the full 20 years, a sentence that will be imposed by a new judge now that Gilbert has recused himself.

Antonin Scalia, Bleeding-Heart Liberal

jsullum@reason.com (Jacob Sullum) — Wed, 03 Oct 2007 18:04:00 EDT

Yesterday the Supreme Court heard arguments in two drug cases that raise the question of how far and for what reasons judges may depart from federal sentencing guidelines now that the Court has declared them advisory rather than mandatory. In one case, a guy who sold MDMA pills in college but went on to graduate and start a construction business received probation instead of the three-year prison sentence suggested by the guidelines. In the other, a man who was caught with crack, cocaine powder, and a gun got 15 years, the statutory mandatory minimum, instead of the 19 years the guidelines recommended. The headline over the Los Angeles Times story about the cases ("Justices Say They Lean to Sentencing Leeway") suggests the Court is inclined to approve both of these departures, even though the latter is based in part on disagreement with the claim, accepted by Congress, that crack cocaine possession is a far worse offense than powder cocaine possession.

That groundless belief is the basis for the notorious 100-to-1 weight ratio that gives a first-time offender possessing five grams of crack a five-year sentence, the same as the punishment received by someone possessing 500 grams of cocaine powder, and gives someone possessing 50 grams of crack a 10-year sentence, the same as the punishment received by somone possessing five kilograms of cocaine powder. Unfortunately, neither judicial discretion nor the pending changes to the sentencing guidelines, which will take effect on November 1 unless Congress nixes them, will change those particular penalties, which are dictated by statute.

This is another situation, like the debate over the president's detention powers, where Antonin Scalia belies the left-liberal caricature of him as an authoritarian ogre and sees eye to eye with the ACLU. He is the Court's leading advocate of the Sixth Amendment argument that juries, not judges, must determine facts that trigger enhanced penalties, which was the rationale for making the sentencing guidelines advisory. His main opponent on this issue is Stephen Breyer (not coincidentally, an architect of the guidelines as a member of the U.S. Sentencing Commission), a Clinton appointee whom leftish Court observers tend to view more favorably than Scalia:

It "would be the end of the guidelines," Breyer said, if judges were free to decide for themselves on appropriate prison terms...
Justice Antonin Scalia, however, is a skeptic. He said the guidelines often result in overlong prison terms. "The guidelines are only guidelines. They are advisory," he told [Deputy Solicitor General Michael] Dreeben, so judges should be permitted to hand down shorter sentences.

Khmer Rouge "Brother No. 2" To Face Trial

bdoherty@reason.com (Brian Doherty) — Thu, 20 Sep 2007 11:01:00 EDT

From Reuters:

Khmer Rouge "Brother Number Two" Nuon Chea, Pol Pot's top surviving henchman, was arrested on Wednesday at his house on the Thai border and taken to Phnom Penh to face the U.N. "Killing Fields" tribunal for the first time.
A terse, two-sentence statement by the $56 million court said the octogenarian communist guerrilla would "be informed of the charges which have been brought against him" -- in all likelihood genocide or crimes against humanity.
..........
Nuon Chea is accused of being the surviving Khmer Rouge commander most responsible for the atrocities of the "Killing Fields," in which an estimated 1.7 million people died.
In July, the long-awaited tribunal charged chief Khmer Rouge inquisitor Duch with crimes against humanity, the first formal indictment of any of the top cadres of the 1975 "Year Zero" revolution.

An article by me from last month on the endurance of the pop culture the Khmer Rouge tried to destroy.

A Yale University site examining Cambodian communist crimes.

No Safe Words in Federal Court

bdoherty@reason.com (Brian Doherty) — Tue, 11 Sep 2007 12:41:00 EDT

Glenn Marcus, a Brooklyn man who insists that the BDSM activities for which he was convicted were consensual at the time and only regretted by his partner later, gets nine years (and the absurd codicil that he is legally forbidden to look at porn on the Internet). He plans to appeal.

A Brooklyn Daily Eagle account (complete with a very opinionated headline) of sentencing day in court. My earlier blog entry on his conviction, with links for context, and an interesting comments thread.

The Terrorist Trainee, the Terrorist's Lawyer, and the Pizza Guy

jsullum@reason.com (Jacob Sullum) — Wed, 22 Aug 2007 18:49:00 EDT

I didn't have the space to get into this in my column today, but the charges (PDF) on which Jose Padilla was convicted ranged from puzzling to a bit of a reach. Congress did not specifically outlaw the essence of his crime—undergoing training for terrorism—until 2004. Since Padilla went to Afghanistan in 2000 and returned to the U.S. in 2002, he was instead charged with providing "material support" to a terrorist group. This is the same charge that has been brought in other cases involving people who underwent terrorist training prior to 2004, such as the Lackawanna Six. But it requires an implausible reading of the statute, which specifically lists the kinds of help that count as "material support."

Among them is providing "personnel," and the Justice Department maintains that "personnel" can include oneself as well as other people. Such a broad reading potentially could cover anyone who does work for a terrorist group, including lawyers who represent accused terrorists. This problem is compounded by a 2004 amendment that extends the material support prohibition to "any...service." As UCLA law professor Norman Abrams noted in a 2005 Journal of National Security Law & Policy article (PDF), "the janitor or the pizza delivery person or a taxi driver, or anyone who provides the most mundane 'services,' would seem to be at risk of prosecution" under this provision.

Even if you can "provide personnel" simply by contributing your own labor, learning how to fire an assault rifle seems more like receiving than giving. Presumably that is why the government plays up any actions during training, such as serving as an armed guard, that resemble real work, even if the main point of those duties is pedagogical.

In addition to providing material support, Padilla was convicted of conspiring to provide material support, based largely on his ties to two codefendants accused of sending money to terrorist groups (which clearly counts as material support under the law). But while Padilla's friends may have encouraged him to seek Al Qaeda training and assisted him in doing so, that seems to have been the extent of his participation in this "terrorism support cell." So this charge too seems to hinge on whether undergoing training amounts to providing personnel.

Finally, Padilla was convicted of conspiring to kidnap, maim, and murder people in other countries. That may seem far-fetched in light of his failure to attempt, let alone carry out, a single act of terrorism. But of the three charges, it is the one that best fits his actions. Although Padilla's lawyers argued that Al Qaeda's arms training could be helpful to people who plan to use violence only in defense of other Muslim, it seems reasonable to assume that someone who undergoes terrorism training plans to commit acts of terrorism and does so in concert with others to the extent that they help him obtain the training. This charge not only avoided having the whole case hinge on the meaning of "material support"; it also boosted the potential sentence from 15 years (the maximum for providing material support) to life.

In the June 2004 issue of reason, Jarett Decker considered the case of Lynne Stewart, a New York lawyer who was charged with providing material support to terrorists because she helped a client, the imprisoned terrorist leader Sheikh Omar Abdel Rahman, secretly pass messages to his followers, in violation of government restrictions to which Stewart had agreed. The government initially said Stewart had provided personnel by providing herself and provided "communications equipment" by making phone calls and sending faxes on Abdel Rahman's behalf. After a judge ruled that the material support prohibition was unconstitutionally vague as applied in the original indictment, the government changed tack, dropping the part about "communications equipment" and saying Stewart had provided personnel by making Abdel Rahman available to his followers. In February 2005, Stewart was convicted of providing material support and conspiring to provide material support as well as concealing the support, making false statements, and conspiring to defraud the government. She received a 28-month sentence in October 2006 but is free on bail pending her appeal.

More Good News for Richard Paey

jsullum@reason.com (Jacob Sullum) — Mon, 20 Aug 2007 10:35:00 EDT

Richard Paey's wife, Linda, reports that he has been granted a waiver from the usual rule that a prisoner can seek clemency only after serving a third of his sentence. Paey, a Florida resident who was convicted of "drug trafficking" based entirely on opioids he obtained from pharmacies to treat his severe chronic pain (and who is now receiving pain relief via a state-approved morphine pump), has served three and a half years of a 25-year mandatory minimum sentence. As a result of the nationwide publicity attracted by this extraordinary injustice, consideration of his clemency petition has been expedited, and a hearing is scheduled for September 20. The Pain Relief Network has more on Paey's case here.

In a letter I received the other day, Paey calls attention to what his attorney, in a memorandum (PDF) supporting the clemency petition, calls "a spectacular rhetorical pirouette": At Paey's trial, the prosecution argued that even if his out-of state doctor had approved all of the prescriptions (which the doctor, who could have faced jail time himself, denied), Paey was still guilty of filling prescriptions the government retroactively deemed invalid. Under Florida law, he was therefore guilty of drug trafficking.

In the case of Mark O'Hara, as Radley Balko noted earlier this month, Florida prosecutors took this logic a step further. O'Hara received a 25-year sentence for possessing 58 Vicodin pills, even though he had a valid prescription. His conviction was overturned, but prosecutors plan to try him again.