For many years, the crimes of manufacturing, delivering, and possessing drugs mixed with cocaine base (crack cocaine) have been punished much more severely than the same crimes involving the same amount of cocaine in the form of powder. The Uniform Controlled Substances Act, which is found in United States Code Title 21, sets forth penalties for drug offenses. Under federal law, the simple possession of powder cocaine carries no mandatory prison sentence and the maximum punishment is 1 year. For committing the exact same offense of simple possession involving crack cocaine, however, there is a mandatory sentence of 5 years in prison.
Similarly, there are disproportionate sentences for the manufacture and delivery of the different forms of cocaine. Under the Uniform Controlled Substances Act, the manufacture of delivery of powder cocaine in the amount of 5 kilograms (5,000 grams) carries a mandatory minimum sentence of 10 years in prison. But it only takes 50 grams of crack cocaine involved in the exact same offenses to receive this same 10-year sentence. In other words, people convicted of manufacturing or delivering powder cocaine need to have 100 times the amount involved that someone convicted of manufacturing or delivering crack cocaine would need to have involved in order to receive a mandatory 10-year prison sentence.
Critics have taken issue with this huge sentencing disparity for quite some time and have noted that the people who cannot afford powder cocaine are the ones who buy and use crack cocaine and that crack cocaine is much more prevalent in the black community than in the white community. There seems to effectively be disproportionate sentencing that punishes the poor and minorities more severely than those who are white, middle class, or wealthy.
In response to the this disproportionate sentencing, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security unanimously passed HR 3245 in July of 2009. The committee also noted that the prisons are being overcrowded with low-level drug offenders and that tax dollars could be better spent on treatment programs rather than housing low-level offenders for long periods of time. This bill has been named the Fairness in Cocaine Sentencing Act of 2009 and is currently pending in the House of Representatives.
If the bill becomes law,it will remove the mandatory minimum 5 year sentence currently imposed for simple possession of crack cocaine and will remove the language regarding 50 grams of cocaine base from the federal statute setting forth penalties for manufacture or delivery of a controlled substance. This will make the federal sentences for crimes involving crack cocaine less than they are now, but equal to what the penalties currently are for powder cocaine. It is not yet known if the proposed legislation will be retroactive if it is passed. In the meantime, if you are charged with an offense involving crack cocaine in federal court, you may seek to continue the sentencing hearing until we know whether or not the Fairness in Cocaine Sentencing Act of 2009 will become a law.
Tuesday, January 12, 2010
Monday, January 4, 2010
WASHINGTON SUPREME COURT FINDS EVIDENCE OF METH LAB MAY HAVE BEEN OBTAINED ILLEGALLY
Last month, the Washington State Supreme Court issued another decision protecting our privacy rights. In State v. Winterstein, the defendant, Winterstein ,was on probation for a gross misdemeanmor and had moved to a new address. Although Winterstein had updated his address with the Department of Corrections, his probation officer did not have the new address. Winterstein was only obligated to notify the Department of Corections (DOC) of the address change.
After the Winterstein failed drug tests and failed to report to his probation officer (PO), the PO decided to pay the defendant a visit at his new address. The PO also received a tip indicating that there was a meth lab at the defendant's old address. As a condition of probation, Winterstein had agreed to be subject to search of his home if the Department of Corrections had reasonable cause to believe that he was violating the terms of probation. The PO arrived at Wintersteins' old address, knocked on the door, and was given permission to enter by one of the residents. The PO searched the house, but never asked for consent to search. In the house, he found methamphetamine paraphernalia and other evidence of the illegal manufacture of methamphetamine.
Winterstein's attorney did not find evidence that Winterstein had updated his address with DOC until the trial had already begun and the attorney filed a motion to suppress the evidence based on the fact that the PO did not have the authority of law to search Winterstein's old home. The trial court denied the motion and Winterstein was convicted. Wineterstein appealed and the Washington State court of Appeals affirmed the conviction.
The Washington Supreme Court just ruled that the lower courts applied the wrong standard in determining the legality of the PO's search of Winterstein's old residence. The lower courts had said that all that was needed to justify the warrantless search was reasonable suspicion that Winterstein still lived there. The Washington State Supreme Court rejected that proposition and said that based on the Washington State Constitution, which provides broader protection than the Fourth Amendment to the U.S. Constitution, the PO must have probable cause to believe that Winterstein resided at the home that was searched. The decision was remanded to the lower court for further proceedings.
This does not mean that the conviction will be reversed. The lower court may still find that the PO had probable cause after they apply the appropriate standard. In any event, this is a victory for proponents of laws protecting us from unreasonable searches and seizures.
After the Winterstein failed drug tests and failed to report to his probation officer (PO), the PO decided to pay the defendant a visit at his new address. The PO also received a tip indicating that there was a meth lab at the defendant's old address. As a condition of probation, Winterstein had agreed to be subject to search of his home if the Department of Corrections had reasonable cause to believe that he was violating the terms of probation. The PO arrived at Wintersteins' old address, knocked on the door, and was given permission to enter by one of the residents. The PO searched the house, but never asked for consent to search. In the house, he found methamphetamine paraphernalia and other evidence of the illegal manufacture of methamphetamine.
Winterstein's attorney did not find evidence that Winterstein had updated his address with DOC until the trial had already begun and the attorney filed a motion to suppress the evidence based on the fact that the PO did not have the authority of law to search Winterstein's old home. The trial court denied the motion and Winterstein was convicted. Wineterstein appealed and the Washington State court of Appeals affirmed the conviction.
The Washington Supreme Court just ruled that the lower courts applied the wrong standard in determining the legality of the PO's search of Winterstein's old residence. The lower courts had said that all that was needed to justify the warrantless search was reasonable suspicion that Winterstein still lived there. The Washington State Supreme Court rejected that proposition and said that based on the Washington State Constitution, which provides broader protection than the Fourth Amendment to the U.S. Constitution, the PO must have probable cause to believe that Winterstein resided at the home that was searched. The decision was remanded to the lower court for further proceedings.
This does not mean that the conviction will be reversed. The lower court may still find that the PO had probable cause after they apply the appropriate standard. In any event, this is a victory for proponents of laws protecting us from unreasonable searches and seizures.
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