There’s good news and bad news

There’s been a lot of revelations in the past couple of weeks in terms of how Kafkaesque the criminal process has become in the US. Most importantly, the NSA leaks have led to the Drug Enforcement Administration’s extensive and often misrepresented use of surveillance for comparatively minor domestic offenses. As it turns out, the criminal investigation process in the US is shockingly loose and fast with the facts.


(A description of how normal intelligence gathering methods are used to confirm information originally gleaned by the NSA and DEA through extensive internet surveillance, which can then remain relatively obscure. From here.)

The silver lining in recent news, however, has been the US Supreme Court’s striking down of existing legal precedents that allowed judges to push for mandatory minimums on the basis of evidence not presented to the jury during the criminal proceedings. As the American Civil Liberties Union’s amicus curiae filed during the case explains the issue (on page 14):

A drug quantity that is not charged in an indictment or proved to a jury, but nevertheless sets a mandatory minimum, also raises the statutory maximum to which the defendant is exposed, a circumstance ‘Harris simply does not speak to.’ United States v. Gonzalez, 420 F.3d 111, 127 (2d Cir. 2005). The penalty provisions of the drug statute lay out three distinct ranges: 0 to 20 years; 5 to 40 years; and 10 years to life. 21 U.S.C. § 841(b)(1)(C), (B), (A). These penalty ranges correspond to offenses of conviction involving an unquantified amount of drugs, a quantity of drugs above a certain threshold, and a quantity of drugs above a higher threshold, respectively. A drug quantity finding that sets or increases a mandatory minimum therefore raises the punishment ceiling as well as the punishment floor.

In essence, this mechanic not only forced increases in jail time but further permitted sentences to inflate massively with effectively very little review within the judicial process. Thankfully, the court seems to have rescinded it, although numerous similar propositions (such as “three strikes” laws, to say nothing of the misrepresented DEA surveillance system) also need to be dismantled.

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