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About James E. Novak

James E. Novak participates in several legal organizations including The Arizona Attorneys For Criminal Justice, The Association of Trial Lawyers of America, and others. As well as:

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Federal Prison Reform Proposal – Eliminating Mandatory Minimums in Drug Sentencing

 ”It’s not about giving up, or giving in. It’s about making sure the punishment fits the crime”.

Cases in Point

In April 2013, 46-year-old John Horner, a restaurant worker, and father of three children, was convicted of selling pain killers worth $1,800.00. He was sentenced to 25 years in prison due to the mandatory minimum sentencing for drug offenses. The question that begs answer is whether he deserved to be sentenced to life in prison.

One of the most controversial cases is that of Clarence Aaron, who is serving three life sentences for his role in a cocaine drug deal he witnessed. Clarence, age 24 at the time, was a football player, and college student, with no prior criminal record. His role did not involving using, possessing, trafficking, or distribution. It was to introduce a buyer and seller in return for $1,500.00. He was present at the sale. He was convicted and sentenced to what is being called on the on the longest prison sentences ever ordered for his role, and for refusing to cooperate with law enforcement authorities. That was in 1993. Clarence Aaron is still serving time, and hoping for Presidential Clemency. Did the punishment fit the crime?

Each year, thousands of similar applications for pardons are being made to the US Justice Department, but very few are granted. A large number of applications are from offenders serving 10 years to life terms in prison due to low-level, non-violent drug offenses.

Prison Facts

United States of America has the highest incarceration rate in the world, which continues to be the fastest growing as well. Last week, The Business Insider reported recent statistics from the United States Bureau of Prisons (BOP).

The BOP reported an alarming 48 percent the United States of America Federal prison population is serving time due to drug offenses. This is mostly the result of the current Mandatory Minimum sentencing.

Mandatory Minimums are harsh sentencing laws that require automatic prison terms for those convicted of certain crimes. Judges have little to no discretion with regard to sentencing in certain crimes with regard to mitigation of the penalties or prison term. This is the case, even if the punishment does not fit the crime.

History, Trending, News

In 1986 President Ronald Reagan declared “War on drugs”. Since that time the practice of incarcerating low level drug dealers and non-dangerous, non-violent drug offenders has snowballed out of control.

The Washington Post reported that US Justice Department statistics indicated the cost of incarceration in 2010 in the USA was over $80 billion dollars, and the Federal Prison population has grown by 800 percent since 1980. This has taxed prisons to operate at over 40 percent over maximum capacity resources. Many believe one primary cause of the soaring prison overpopulation problem is the existence of mandatory minimums, particularly for lower-level drug crime convictions.

Recently The United States Attorney General Eric Holder announced that low-level, non-violent drug offenders with no involvement in gang activity, and no ties to large-scale drug organizations, will cease to be charged with crimes that call for severe mandatory prison sentencing. This announcement was part of a larger prison reform package unveiled that also serves to require alternatives to prison for non-violent inmate and criminals. The reform guidelines call for a change in policy in the US Justice Department that will serve to reserve the harshest sentencing and penalties for drug offenses for serious, high-level, dangerous, violent drug offenders.

This prison reform proposal is a response to overpopulated and over-burdened prison system. Holder expressed the need for the United States to recognize not only the need to punish crimes, but to “deter and rehabilitate”. This change not only serves to reduce financial burdens of over-crowded prisons. But it is also a strong signal of the recognition that punishment alone has proven ineffective in reducing repeat offenses or recidivism in low-level drug offenses, in absence of other inmate reform efforts, which could include occupational rehabilitation, mental health, and substance abuse counseling or treatment.

Other provisions in the prison reform proposal will require some legislative changes including the granting of discretionary authority to federal judges with regard to not applying mandatory minimum sentences to those low-level, non-violent drug convictions.

Pros and Cons

Opponents for elimination of mandatory minimum sentencing, argue that softening the sentences do not serve justice, nor do they make society safer. They feel it simply encourages potential offenders to commit drug crimes, and that the US is giving in and giving up to the “war on crime” declared by former President Ronald Reagan in 1986.

Supporters of the reform feel that the Federal Government is “late for the party” so to speak as a number of states have already addressed these issues, and have in some way reformed, or eliminated mandatory minimums so low-level drug offenses.

Advocates also feel that such offenders, although disliked by society, are at the same time, non-dangerous, non-violent, or not to be feared. Proponents feel it’s not about giving up or giving in.  Rather, it’s about making sure the punishment fits the crime, instead of “one size fits all”.

They feel that giving judges more discretion and eliminating mandatory minimums for low-level offenders will serve to reduce overcrowding in prisons; help rehabilitate and reform drug offenders, enable the justice system to focus on prosecution and incarceration of more serious, violent, and dangerous offenders.

Arizona Mandatory Sentencing Laws and Trends

Arizona judges have more discretion in sentencing of drug crimes involving quantities of illegal drugs that do not exceed the statutory “Threshold Amounts”. Quantities exceeding the Threshold Amounts are generally viewed as amounts in possession for sale, or intended sale or distribution, which are subject to mandatory prison terms. Mandatory Minimum sentences apply to drug trafficking and other serious drug offenses or felony violations under A.R.S. 13-3410, including unlawful drug offenses that involve a weight of the drug that exceeds the statutory Threshold Amount A.R.S. 13-3401.36 specified by law for dangerous drugs, Marijuana and narcotics.

Arizona sentencing laws have undergone many changes since the 1970s. Current reforms in place involve what is known as the “three –strikes-statute”. Under criminal code A.R.S. 13-706 the statute calls for mandatory extended prison sentencing for third-time violent, dangerous, felony (aggravated) offenders. However, offenders of serious, violent, dangerous and aggravated offense against a victim, are also exposed to mandatory minimum prison sentencing guidelines up to life in prison, and are also exposed to the death penalties.

Aggravated or felony DUI, for example third-time DUI conviction within 7 years, under A.R.S. 28-1383 call for mandatory minimum prison sentencing.

The trend in Arizona is to reduce or eliminate incarceration in jail or prison of non-dangerous or non-violent illegal drug possession or use crimes.  The state seeks to address drug abuse as a treatable illness, thereby offering counseling, and treatment for substance abuse as an alternative to incarcerations.  Under A.R.S. 13-901 which is sentencing for convictions of personal possession or use of drugs, non-dangerous drug offenders may be eligible for probation and substance abuse treatment program for first-time offenses.   However, persons convicted of a second offense are generally not eligible for participation in the drug treatment program as an alternative to incarceration.

Criminal Defense for Maricopa County DUI Arrests

Any drug offense arrest is potentially serious. Persons charged with drug crimes in Chandler, or Gilbert AZ or other Phoenix-East valley cities should always consult an experienced criminal drug defense attorney before pleading guilty to any charges. Even if they think they may be eligible for a drug diversion program, a qualified criminal defense attorney should be consulted. Without proper legal representation a person can get swift convictions and be subject to harsh penalties which include jail or prison terms. If retained, an experienced criminal attorney will be able to protect your rights, defend your charges, and help secure the best possible outcome on your behalf.

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