Sunday, June 4, 2017

"Drug addiction is generally mitigating . . ."

Continuing with the neurological theme of the last post, there is powerful scientific evidence establishing the long-term effects of methamphetamine addiction, evidence that is relevant to the "history and characteristics of the defendant" under 18 USC sec. 3553(a)(1).

Remarkably, some jurists still debate whether drug addiction is a disease or a product of free will. This distinction often bears on issues of culpability and whether our client is compassion-worthy. In United States v. Hendrickson, 25 F.3d 1166 (N.D. Iowa 2014), Judge Mark Bennett wrote a compelling and detailed sentencing decision that describes this split and "to explain my view that drug addiction is generally mitigating, especially in cases, like this one, where the defendant is both young and has been addicted to drugs throughout adolescence and most of his early adulthood."

Judge Bennett has been a frequent critic of mandatory minimums for low-level addicts. From yesterday's CNN report,
Too often, Bennett says, low-level nonviolent drug addicts dealing to feed their habit end up being sentenced like drug kingpins. . . . "I think it's a miscarriage of justice," Bennett says. 
This article compared former Attorney General Eric Holder's more compassionate approach to low-level drug offenders with current AG Jeff Sessions' call for the most serious charges and the most serious penalties available. Here is Larry Leiser, President of the National Association of Assistant U.S. Attorneys, defending the harsh policy as helping “young people who see people in the community wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

Science dismantles this primitive idea that addiction is just a moral flaw or lack of willpower. Sometimes the court has room for discretion, and in those instances, science is on our side.  The Hendrickson opinion is loaded with references to scientific and government studies on the neurological implications of addiction, e.g. Steven E. Hyman, The Neurobiology of Addiction: Implications for Voluntary Control of Behavior, 7 Am. J. Bioethics 8, 9-10 (2007).  Additionally, see Meredith Cusick, Note, Mens Rea and Methamphetaime: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction, 85 Fordham L. Rev. 2417, 2427 (April 2017); and Holley, Mary, Ph.D., How Reversible Is Methamphetamine-Related Brain Damage?, 82 N.D.L. Rev. 1135 (2006); and this from the 2016 (Obama era) Surgeon General's Report, Facing Addiction in America ("Addiction to alcohol or drugs is a chronic but treatable brain disease that requires medical intervention, not moral judgment.").

Postscript: Judge Bennett imposed a lower sentence (31 months) than the prosecutor requested (high end of 46 months) and lower than the defense attorney requested (low end of 37 months).

-- Melody (with thanks to Colorado AFPD Veronica Rossman). 

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