Life in prison for repeat offenders part of Palaszczuk government's new drug reform The former is about the ranking of various criminal offences based on their seriousness, where offenders convicted of crimes of a comparable seriousness should receive sentences of a comparable severity, and the latter requires that the sentence should not be too severe or too lenient to the gravity of the offence in question.Footnote 15 Therefore, a sentence should not be grossly excessive; it should reflect the extent to which the offender is deemed responsible for the consequences of their actions.Footnote 16 However, there are obvious difficulties in ranking different offences. Gastelum Avila faces a maximum penalty of life in prison for the drug conspiracy charge and a mandatory consecutive sentence of 30 years for the firearms offense. It has been observed that drug mules (often unaware of what they are transporting in their luggage) are the ones who are caught with substantial drug weights, while those with significant or leading roles in the drug trafficking ring carry small amounts so that, if caught, they will not have to face lengthy sentences.Footnote 68 Although 600 grams was initially considered a substantially heavy weight, the growth and trends in drug trafficking over the years necessitated further clarification of the sentencing bands. Production of a controlled drug, Misuse of Drugs Act 1971 (section 4(2)(a) or (b)) Cultivation of cannabis plant, Misuse of Drugs Act 1971 (section 6(2)) Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is The harshness of the cardinal proportion represents the condemnation of society. Under Iowa law, many people are currently serving a Class C felony sentence under Iowa Code section 124.401 (1) (c) for offenses such as: drug possession with The exponential curve, the graph in Figure 1c, highlights a more severe sentence for heavier drug weights. Secure .gov websites use HTTPS WebTo ensure sentencing consistency in drug trafficking cases, the court laid down sentencing guidelines based on the drug weight (of 100 per cent purity). hVmkG+! This implies that the sentences for smaller drug weight categories are considerably harsher than those of heavier weight categories. Updated April 3, A federal district court judge will determine any sentence after considering the U.S. Although deterrence is at the forefront of heavy sentences for serious drug trafficking offences, the Hong Kong Court of Appeal also observed that sentencing tariffs would assist trial courts in achieving consistency and fairness in sentencing and guide lawyers in the giving of advice to lay clients.Footnote 81 It is apparent that in both jurisdictions, the prospect of equal justice is promoted through sentencing guidelines. The following offences are included in the revised guidelines: Between 15 January 2020 and 7 May 2020 the Council consulted on revisions to the drug offences guidelines and new draft guidelines covering offences provided for by the Psychoactive Substances Act 2016. Start download. These revisions will be submitted to Congress as amendments. 53 Kirby, Amy & Jacobson, Jessica Public attitudes to the sentencing of drug offences (2013) 14 Criminology and Criminal Justice 334Google Scholar. 67 Official English translation quoted in HKSAR v Abdallah Anwar Abbas (n 1) paras 19. Enter terms & hit enter . (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use Considering the downward trend of product purity of the drugs being sold, the judge stressed the need to take into account the rapid changes that have occurred and to at least attempt to provide assistance that can cover future trends.Footnote 58 The Court also warned that this trend of lower purity increases the dangers posed by drug abuse, as less pure drugs increase the risk of impurities entering the bloodstream.Footnote 59 The judgement also emphasised the hazards that drugs pose to society (for both individual and community health and the proliferation of deviance), with its ultimate goal being the ability of the guidelines to respond not only to the changing trends of drug trafficking (eg, purity dropping), but also to future shifts in practice. Although marginal, a difference manifests at greater drug weights where the difference between the two linear functions of the lesser and significant roles in 1000 grams is larger than the difference at 5000 grams. The United States requested his provisional arrest in February 2020 and Mexican authorities arrested Gastelum Avila based on that request in March 2020. Sentencing guidelines, like other common law jurisdictions, are set by the Court of Appeal. !X)eMP7<6qX:=tu-Wwe:Ymn>/7jvo8Sty#+b`._W%Y[v[obYh;K#ZoQyAH7 {v8y2yv3t)`.`WKUk(dp'sIXi'? A federal district court judge will determine any sentence after considering the U.S. Sentencing Commission's development of Section 2D1.1 of the Federal Sentencing Guidelines -- Unlawful Manufacturing, Importing, Exporting, or Trafficking. Williams is scheduled to be sentenced on Oct. 5, 2023, by U.S. District Judge Troy L. Nunley. When discussing the appropriate punishment for drug traffickers, it is crucial to consider the blameworthiness of an offender. The principle of proportionality reflects the idea that a punishment should be proportionate to the harm inflicted by the criminal act. Our criteria for developing or revising guidelines. More specifically, each gram of cocaine in a 300-gram sample adds 0.18 months to the sentence, whereas a 500-gram sample adds a 0.30 month increase for each additional gram. This discrepancy underscores the fact that, in Hong Kong, the guidelines are significantly more lenient with larger sums of trafficked drugs compared to smaller drug weights. The following tables summarise this:Footnote 76, Table 4. Below is a sampling of state penalties pertaining to drug In R v Morris, the Court indicated that the drug weight for heroin and cocaine should be determined through a purity analysis. All rights reserved. Green's qualitative analysis on Nigerian traffickers arrested within European jurisdictions and specifically sentenced according to British drug control policies questioned the usefulness of the repressive sentencing regime.Footnote 17 This led to a spate of scholarship revealing that the traffickers being sentenced were less blameworthy individuals, be it under coercion or through exploitation.Footnote 18 Victims of human trafficking can be coerced into drug trafficking.Footnote 19 Cases in Indonesia, for example, revealed the connection between victims of human trafficking being used as drug mules.Footnote 20 Research by the Sentencing Council for England and Wales into women imprisoned for unlawful importation of drugs found that the women interviewed either did not know that they were carrying drugs or that they committed the crime because of their desperate livelihoods and threats that they have received, and that sentencing, despite knowing a custodial sentence was likely, was not a consideration.Footnote 21, An American judge, Jim Gray, observed that many defendants he sentenced were drug users and addicts who were only supplementing their habit with street dealing.Footnote 22 These observations led to a supplementary policy expanding the use of drug treatment centres. '5gQ*+\*tD!13O;avx!!`d8-@jR oQ;wE w,:|C6Xq+ e 1^H]'AiO@ejxPaPe]5[@8lb_ZJ,'5_Xe"hwe-Q-huCWiJ8a&@lk6LU"xlT tB!+@*!V5=J/7~:qe[+7x}Um;=. Keywords . ;/1M:b6>|>BYh$Fzy'Tg"%ZNB9mRiV*Amd!:}f|[ Instead, the Hong Kong courts treat each defendant at the lowest level of culpability unless presented with additional evidence. 9 Jennifer Fleetwood, Sentencing reform for drug trafficking in England and Wales (International Drug Policy Consortium Briefing Paper, Apr 2015) accessed 16 Mar 2022. Keep up to date on sentencing guidelines, consultations, our research and news about the Council and our work. This Court [does] not have evidence to show that the applicant was the main instigator of the drug trafficking or was a repeat offender. The Sinaloa Cartel is a violent, transnational drug trafficking organization based in Mexico that engaged in the manufacture, distribution, and importation of ton quantities of cocaine and marijuana from Colombia, Ecuador, Venezuela, Peru, Panama, Costa Rica, and Honduras to Mexico and into the United States. A lock (LockA locked padlock) or https:// means youve safely connected to the .gov website. School of Government, The University of North Carolina at Chapel Hill, Jessica Smith (Ed.). LockA locked padlock It is important to note that the sentence can be enhanced by aggravating factors such as if the trafficker is a mastermind or senior player, such as a financier, in a syndicate.Footnote 84 Without a systematic integration of culpability into the guidelines, the assessment of the offender's role is left to the judge's discretion. The slopes between the second and third weight categories at 50 grams have a discernible difference towards a plateau. The purpose of this report is to contribute to the ongoing assessment of federal cocaine sentencing policy by Unlike England and Wales, where heavier weight categories correspond to lower slopes, Hong Kong increases in slope for the weight range category of 400 to 600 grams. Slopes of the Functions for Cocaine and Heroin Guidelines. The Commission collects, analyzes, and disseminates a broad array of information on federal crime and sentencing practices. Court documents also allege that at the time of his arrest, Gastelum Avila was a lead sicario, or assassin, for the Sinaloa Cartel and worked closely with Guzman Loera. endstream endobj startxref All defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law. 21 UK Sentencing Council, Drug Mules: Twelve Case Studies, Office of the Sentencing Council (Analysis and Research Bulletins, Mar 2011) accessed 16 Mar 2022. The Sentencing Commission examined past federal sentencing practices as a starting point in developing the initial sentencing guidelines. A federal district court judge will determine any sentence after considering the U.S. Extension period of disqualification from driving where a custodial sentence is also imposed, 2. Twenty-one defendants are also facing a charge of possession of firearms in furtherance of a drug trafficking crime. The arithmetic starting point is the sentence length that judges should use as a starting point, and it is dictated by guidelines laid down to ensure consistency across drug trafficking offences. After calculating the arithmetic starting points for each gram between the minimum and maximum drug weight thresholds, a linear plot for each guideline was graphed. The consultation on the original guidelines for drug offences was open from 28 March 2011 to 20 June 2011. This prosecution is part of an Organized Crime Drug Enforcement Task Forces (OCDETF) The most culpable is a leading role, which may mean that the offender has been found to be directing or organising the buying and selling of controlled drugs at a commercial scale, has substantial links to such an enterprise, exerts considerable influence on others in the supply chain, or has an expectation of substantial financial gain. This does not match the other category weights, where the slopes continue to decrease as the category weight increases. Figure 3 is a plot of the linear function for Hong Kong's sentence starting point for cocaine and heroin. This calculation assumes that, when sentencing, judges use the laid down guidelines to ascertain the starting point of the sentence. 50 Release, Release's response to the Sentencing Council's drugs offences guideline professional consultation (2011) accessed 16 Mar 2022. Harsh sentences are considered necessary to serve as deterrence to drug trafficking.Footnote 3 The rationale behind this reasoning is the harmful effect of drug addiction suffered by drug users and the detrimental impact of drugs on the social fabric of the community.Footnote 4 This was a central issue concerning drug-related offences in the latter half of the 20th century.Footnote 5 The United Nations directed states to address the manufacturing, supply, and non-medical use of drugs.Footnote 6 States, including Britain, convened at the United States behest to establish (stricter) regulations on the humanitarian grounds for curbing drug abuse. Sentencing Guidelines and other statutory factors. Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment. Therefore, the starting point of a sentence, which is based on the seriousness of an offence, is a formulaic result of drug weight, drug type, and offender culpability. Like other sentencing guidelines, after the determination of the starting point of the sentence, the court will then consider other aggravating factors that may enhance the sentence, and mitigating factors that may reduce the sentence, any sentence reduction for guilty pleas, and the totality principle in cases of multiple offences,Footnote 57 as well as consideration for time spent remanded in custody. Sentencing Guidelines and other statutory factors. Lastly, Category 4 includes heroin, cocaine of 5 grams, ecstasy of 13 tablets, cannabis of 100 grams and ketamine of 5 grams. The category of harm is divided into four categories. A curve mimicking the graph in Figure 1a would seek to deter the trafficking of smaller drug weights more than the trafficking of heavier drug weights after a given threshold is achieved, marginal increases in the drug weight tend to correspond with only a minor increase in sentence length. Fleetwood revealed how organisers gamed the system by using female drug mules to traffic substantial weights of drugs while they, at most, carried insignificant weights, thus reducing their personal risk.Footnote 26 This exposed the ineffectiveness of punitive sentences in deterring drug trafficking in situations where drug mules are exploited or coerced into trafficking drugs. An official website of the United States government, Department of Justice. 2 For weight examples, see Kevin K Cheng, Sayaka Ri & Natasha Pushkarna, Judicial disparity, deviation, and departures from sentencing guidelines: The case of Hong Kong (2020) 17 Journal of Empirical Legal Studies 580. This handout presents an overview of the Commission's Report to the Congress: Career Offender Sentencing Enhancements. 11 Hirsch, Andreas von, Deserved Criminal Sentences: An Overview (Hart Publishing 2017)Google Scholar. Forfeiture or suspension of liquor licence, 24. 51 Sentencing Council, Drug Offenses, Response to Consultation, (Sentencing Council, 2012) accessed 8 Jan 2022. This prosecution is part of an Organized Crime Drug Enforcement Task Forces (OCDETF) investigation. The HSI Nogales Office and the FBI Washington Field Office are investigating this case. The actual sentence, however, will be determined at the discretion of the court after consideration of any applicable statutory factors and the Federal Sentencing Guidelines, which take into account a number of variables. The focus of this article is on the U.S. Out-of-Term, Out-of-Session, Out-of-County, Trying a Non-Capital Criminal Case: An Outline for the Superior Court Judge, Def's Right to 3rd Party Confidential Records, Voir Dire on Pretrial and In-Court Identification, Voir Dire on Evidence of Tracking by Bloodhounds and Other Dog Breeds, Voir Dire on Confessions/Other Incriminating Statements, Motions to Dismiss for Insufficiency of the Evidence, Content of Opening and Closing Statements, Crime Victims' Rights Act: Covered Crimes, Minimum/Maximum Charts for Felonies Committed on or after 10/1/13, Minimum/Maximum Charts for Felonies Committed on or after 12/1/2011, Maximum Chart for Class B1-E Sex Offenses Committed on or after 12/1/2011, Minimum/Maximum Charts for Felonies Committed 12/1/09 to 11/30/2011, Minimum/Maximum Charts for Felonies Committed 12/1/95 to 11/30/09, Minimum/Maximum Charts for Felonies Committed 12/1/1994 to 11/30/1995, Punishment Chart for Misdemeanors Committed on or after 12/1/1995, Sex Offender Registration & Satellite-Based Monitoring, Petitions to Terminate Sex Offender Registration, Defendants' Objection to Early Disposal of Biological Evidence, Default Judgment (Rule of Civil Procedure 55), Temporary Restraining Orders and Preliminary Injunctions, Rule 9(j) of the Rules of Civil Procedure: Special Pleading in Medical Malpractice Claims, Voluntary Dismissals (Rule of Civil Procedure 41(a)), Routine Limiting Instructions in Civil Cases, Jury Review of Evidence in Civil Deliberations, Findings of Fact and Conclusions in Civil Orders, Immunity of the State and Local Governments, Rule 404(b): Evidence of Other Crimes, Wrongs, or Acts, Rule 609: Impeachment by Evidence of Conviction of a Crime, Criminal Cases Involving Child Victims and Child Witnesses, Guide to Crawford & the Confrontation Clause, The Bruton Rule: Joint Trials & Codefendants' Confessions, Routine Limiting Instructions in Criminal Cases. In this section, you can follow the Commissions work through the amendment cycle as priorities are set, research is performed, testimony is heard, and amendments are adopted. Particularly in the lower category ranges, Hong Kong's sentencing guidelines more closely equate to England and Wales sentence for defendants with leading roles rather than lesser or significant roles. An exponential curve would allow for the exponential risk of harm corresponding with higher drug weights to be accurately reflected in the sentencing guidelines. 13 Kant, Immanuel, The Metaphysics of Morals (Gregor, Mary tr, Cambridge University Press 1997)Google Scholar. 25 Harper, Rosalyn L, Harper, Gemma C & Stockdale, Janet E, The role and sentencing of women in drug trafficking crime (2002) 7 Legal and Criminological Psychology 101CrossRefGoogle Scholar. In July 2019, he was sentenced to life in prison for being a principal leader of a continuing criminal enterprise, narcotics trafficking, using a firearm in furtherance of his drug crimes, and participating in a money laundering conspiracy. The Commission serves as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public. As part of the conspiracy, the members acted in different roles to further the goals of the conspiracy, including acting as leaders, enforcers, runners, sellers, and facilitators. MANDATORY 3 YEAR PRISON SENTENCE 2.2 pounds, but less than 100 pounds of marijuana * 28 grams, but less than 500 grams of cocaine 4 grams, but less than 14 grams of an opiate, morphine, or heroin 81 R v Lau Tak Ming and Ors (n 1) para 70. Sentencing Guidelines. This publication provides an updated recidivism analysis of crack cocaine offenders who were released early after The Commission votes to publish to the Federal Register proposed amendments to the federal sentencing guidelines. How can certain offences be compared to others on the basis of their seriousness? The ordinances related to drug trafficking have been updated numerous times, but the Dangerous Drugs Ordinance remains the primary legislation for all drug-related offences, with section 4 specifically providing for drug trafficking. The principle that like cases are treated alike is also upheld within Hong Kong's sentencing guidelines. In R v Morris, the Court indicated that the drug weight for heroin and cocaine should be The slope of the linear functions provides a numerical basis for interjurisdictional comparisons of the leniency or severity of the jurisdictions guidelines. The HSI Nogales Office and the FBI Washington Field Office are investigating this case. This difference is miniscule when compared to Hong Kong. 72 Hong Kong Police Force, Crime statistics comparison (GovHK, 2020) accessed 16 Mar 2022. Share sensitive information only on official, secure websites. In this section, you will find a comprehensive collection of research and data reports published on sentencing issues and other areas of federal crime. Deterrence can be viewed through general and specific deterrence. Forfeiture and destruction of goods bearing unauthorised trade mark, 17. For instance, the Court of Appeal in R v Lau Tak Ming and Ors and HKSAR v Abdallah Anwar Abbas stipulated that the starting point of a sentence for trafficking heroin and cocaine ranges from 2 to 5 years imprisonment for weights up to 10 grams and increases to 26 and 30 years for large weights between 4 kilograms and 15 kilograms.Footnote 1. A federal district court judge will determine any sentence after considering the U.S. This section covers sentencing for drug trafficking under G.S. (January 2022) This report is the third in a series continuing the Commissions research of the recidivism of federal (March 2021) This report provides information on offenders sentenced under the Armed Career Criminal Act. In Hong Kong, drug trafficking is regulated through ordinances. Regarding sentencing guidelines in particular, Hong Kong adopts a different modus operandi from England and Wales in two respects: defenders culpability and the standard of punitive measures. That is perhaps why we set the bar at the level of the courier, raising it if there is an international element and when the scale of the applicant's role becomes clear.Footnote 86. 851: Enhanced. "Reader-Friendly" Version of the Proposed Amendments to the Sentencing Guidelines, Federal Register Notice of Proposed 2001 Amendments to the Sentencing Guidelines and Request for Public Comment; Notice of Public Hearing, Federal Register Notice of Emergency 2000 Methamphetamine Amendment, "Reader-Friendly" Version of the 2000 Guideline Amendments Sent to Congress, Federal Register Notice and Request for Public Comment, 1997 Report to the Congress: Cocaine and Federal Sentencing Policy, Survey: Public Perceptions and the Federal Sentencing Guidelines, Promulgation of Emergency Amendment; Notice of Proposed Amendments - Part II, 1995 Report to the Congress: Cocaine and Federal Sentencing Policy, Policy Profile: The Fair Sentencing Act of 2010, The Commission promulgates guidelines that judges consult when sentencing federal offenders. The starting point of such sentences depends on the type of drug and its weight. The arithmetic starting point was the exact sentence length that should be given to a defendant based on their jurisdiction's sentencing guidelines. Sentencing Guidelines and other statutory factors. The drug trafficking guidelines for each jurisdiction were individually sourced. 12 That is, the offender's role in the commission of the offense, their intent, and whether they are mentally capable to tell right from wrong. In drug trafficking cases where dangerous drugs are involved, harm is defined by the trafficked drug weight and drug type. See 21 U. S. C. 812; 21 CFR 1308.12 (2006). Disqualification from ownership of animals, 11. This case is supported by the Organized Crime Drug Enforcement Task Force (OCDETF). Commissioners are nominated by the President and confirmed by the Senate. Assistant U.S. Attorney Corinne Cordero-Romo from the Gang Section is in charge of the prosecution of the case. This signifies that an increase per additional gram trafficked from the lower threshold is equal in all categories, regardless of the offender's role. 542 0 obj <> endobj These documents may include consultation responses, statistical bulletins, resource and equality impact assessments and guideline assessments. Figure 7 presents the linear functions of both jurisdictions plotted on the same scale with a maximum weight of 1000 grams. A significant proportion of Federal criminal prosecutions are drug traffic offenses. The unit of measurement for the slope is the months of sentence per gram of trafficked drug. A .gov website belongs to an official government organization in the United States. } In England and Wales, at the lowest drug weight of 1 gram, a leading role would be equivalent to a 12-month starting point, while this would result in a 24-month starting point in Hong Kong. Using an example to emphasise the disparity between the sentencing guidelines, a sentence for 10 grams of cocaine and heroin would result in an approximate two-month difference between the most punitive and most lenient sentences in England and Wales, while the same dosage would result in a 36-month difference between the most punitive and most lenient sentences in Hong Kong. "The charges in this case reflect the Justice Department's commitment to dismantling drug trafficking organizations that sow violence and fear in our communities. Ketamine Starting Sentence Points for Category 1-4 Drug Weights for each Offender Role Category (England and Wales). Webschedule II drug. Disqualification in the offenders absence, 9. Sentencing Guidelines in Hong Kong for Heroin and Cocaine, The tariffs simply provide a range of sentences corresponding to the quantity of drugs based on the drug type. Each year, the Commission reviews and refines these policies in light of congressional action, decisions from courts of appeals, sentencing-related research, and input from the criminal justice community. Thus, the Court sought to look for other effective and reliable bases that can serve as the starting point for sentencing deliberations. For example, the calculation of the arithmetic starting point for 5 grams of cocaine in Hong Kong is captured in Table 3 above. 70 HKSAR v Kilima Abubakar Abbas (n 39) para 71. Within Hong Kong 's sentencing guidelines -- Unlawful Manufacturing, Importing, Exporting, or trafficking after! Have drug trafficking sentencing guidelines discernible difference towards a plateau of a drug trafficking under G.S GovHK 2020... ( 2006 ) 16 Mar 2022 n 39 ) para 71 judge will determine any sentence after considering U.S. 542 0 obj < > endobj these documents may include consultation responses, statistical bulletins, resource equality! 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Life in prison for repeat offenders part of Palaszczuk government's new drug reform The former is about the ranking of various criminal offences based on their seriousness, where offenders convicted of crimes of a comparable seriousness should receive sentences of a comparable severity, and the latter requires that the sentence should not be too severe or too lenient to the gravity of the offence in question.Footnote 15 Therefore, a sentence should not be grossly excessive; it should reflect the extent to which the offender is deemed responsible for the consequences of their actions.Footnote 16 However, there are obvious difficulties in ranking different offences. Gastelum Avila faces a maximum penalty of life in prison for the drug conspiracy charge and a mandatory consecutive sentence of 30 years for the firearms offense. It has been observed that drug mules (often unaware of what they are transporting in their luggage) are the ones who are caught with substantial drug weights, while those with significant or leading roles in the drug trafficking ring carry small amounts so that, if caught, they will not have to face lengthy sentences.Footnote 68 Although 600 grams was initially considered a substantially heavy weight, the growth and trends in drug trafficking over the years necessitated further clarification of the sentencing bands. Production of a controlled drug, Misuse of Drugs Act 1971 (section 4(2)(a) or (b)) Cultivation of cannabis plant, Misuse of Drugs Act 1971 (section 6(2)) Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is The harshness of the cardinal proportion represents the condemnation of society. Under Iowa law, many people are currently serving a Class C felony sentence under Iowa Code section 124.401 (1) (c) for offenses such as: drug possession with The exponential curve, the graph in Figure 1c, highlights a more severe sentence for heavier drug weights. Secure .gov websites use HTTPS WebTo ensure sentencing consistency in drug trafficking cases, the court laid down sentencing guidelines based on the drug weight (of 100 per cent purity). hVmkG+! This implies that the sentences for smaller drug weight categories are considerably harsher than those of heavier weight categories. Updated April 3, A federal district court judge will determine any sentence after considering the U.S. Although deterrence is at the forefront of heavy sentences for serious drug trafficking offences, the Hong Kong Court of Appeal also observed that sentencing tariffs would assist trial courts in achieving consistency and fairness in sentencing and guide lawyers in the giving of advice to lay clients.Footnote 81 It is apparent that in both jurisdictions, the prospect of equal justice is promoted through sentencing guidelines. The following offences are included in the revised guidelines: Between 15 January 2020 and 7 May 2020 the Council consulted on revisions to the drug offences guidelines and new draft guidelines covering offences provided for by the Psychoactive Substances Act 2016. Start download. These revisions will be submitted to Congress as amendments. 53 Kirby, Amy & Jacobson, Jessica Public attitudes to the sentencing of drug offences (2013) 14 Criminology and Criminal Justice 334Google Scholar. 67 Official English translation quoted in HKSAR v Abdallah Anwar Abbas (n 1) paras 19. Enter terms & hit enter . (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use Considering the downward trend of product purity of the drugs being sold, the judge stressed the need to take into account the rapid changes that have occurred and to at least attempt to provide assistance that can cover future trends.Footnote 58 The Court also warned that this trend of lower purity increases the dangers posed by drug abuse, as less pure drugs increase the risk of impurities entering the bloodstream.Footnote 59 The judgement also emphasised the hazards that drugs pose to society (for both individual and community health and the proliferation of deviance), with its ultimate goal being the ability of the guidelines to respond not only to the changing trends of drug trafficking (eg, purity dropping), but also to future shifts in practice. Although marginal, a difference manifests at greater drug weights where the difference between the two linear functions of the lesser and significant roles in 1000 grams is larger than the difference at 5000 grams. The United States requested his provisional arrest in February 2020 and Mexican authorities arrested Gastelum Avila based on that request in March 2020. Sentencing guidelines, like other common law jurisdictions, are set by the Court of Appeal. !X)eMP7<6qX:=tu-Wwe:Ymn>/7jvo8Sty#+b`._W%Y[v[obYh;K#ZoQyAH7 {v8y2yv3t)`.`WKUk(dp'sIXi'? A federal district court judge will determine any sentence after considering the U.S. Sentencing Commission's development of Section 2D1.1 of the Federal Sentencing Guidelines -- Unlawful Manufacturing, Importing, Exporting, or Trafficking. Williams is scheduled to be sentenced on Oct. 5, 2023, by U.S. District Judge Troy L. Nunley. When discussing the appropriate punishment for drug traffickers, it is crucial to consider the blameworthiness of an offender. The principle of proportionality reflects the idea that a punishment should be proportionate to the harm inflicted by the criminal act. Our criteria for developing or revising guidelines. More specifically, each gram of cocaine in a 300-gram sample adds 0.18 months to the sentence, whereas a 500-gram sample adds a 0.30 month increase for each additional gram. This discrepancy underscores the fact that, in Hong Kong, the guidelines are significantly more lenient with larger sums of trafficked drugs compared to smaller drug weights. The following tables summarise this:Footnote 76, Table 4. Below is a sampling of state penalties pertaining to drug In R v Morris, the Court indicated that the drug weight for heroin and cocaine should be determined through a purity analysis. All rights reserved. Green's qualitative analysis on Nigerian traffickers arrested within European jurisdictions and specifically sentenced according to British drug control policies questioned the usefulness of the repressive sentencing regime.Footnote 17 This led to a spate of scholarship revealing that the traffickers being sentenced were less blameworthy individuals, be it under coercion or through exploitation.Footnote 18 Victims of human trafficking can be coerced into drug trafficking.Footnote 19 Cases in Indonesia, for example, revealed the connection between victims of human trafficking being used as drug mules.Footnote 20 Research by the Sentencing Council for England and Wales into women imprisoned for unlawful importation of drugs found that the women interviewed either did not know that they were carrying drugs or that they committed the crime because of their desperate livelihoods and threats that they have received, and that sentencing, despite knowing a custodial sentence was likely, was not a consideration.Footnote 21, An American judge, Jim Gray, observed that many defendants he sentenced were drug users and addicts who were only supplementing their habit with street dealing.Footnote 22 These observations led to a supplementary policy expanding the use of drug treatment centres. '5gQ*+\*tD!13O;avx!!`d8-@jR oQ;wE w,:|C6Xq+ e 1^H]'AiO@ejxPaPe]5[@8lb_ZJ,'5_Xe"hwe-Q-huCWiJ8a&@lk6LU"xlT tB!+@*!V5=J/7~:qe[+7x}Um;=. Keywords . ;/1M:b6>|>BYh$Fzy'Tg"%ZNB9mRiV*Amd!:}f|[ Instead, the Hong Kong courts treat each defendant at the lowest level of culpability unless presented with additional evidence. 9 Jennifer Fleetwood, Sentencing reform for drug trafficking in England and Wales (International Drug Policy Consortium Briefing Paper, Apr 2015) accessed 16 Mar 2022. Keep up to date on sentencing guidelines, consultations, our research and news about the Council and our work. This Court [does] not have evidence to show that the applicant was the main instigator of the drug trafficking or was a repeat offender. The Sinaloa Cartel is a violent, transnational drug trafficking organization based in Mexico that engaged in the manufacture, distribution, and importation of ton quantities of cocaine and marijuana from Colombia, Ecuador, Venezuela, Peru, Panama, Costa Rica, and Honduras to Mexico and into the United States. A lock (LockA locked padlock) or https:// means youve safely connected to the .gov website. School of Government, The University of North Carolina at Chapel Hill, Jessica Smith (Ed.). LockA locked padlock It is important to note that the sentence can be enhanced by aggravating factors such as if the trafficker is a mastermind or senior player, such as a financier, in a syndicate.Footnote 84 Without a systematic integration of culpability into the guidelines, the assessment of the offender's role is left to the judge's discretion. The slopes between the second and third weight categories at 50 grams have a discernible difference towards a plateau. The purpose of this report is to contribute to the ongoing assessment of federal cocaine sentencing policy by Unlike England and Wales, where heavier weight categories correspond to lower slopes, Hong Kong increases in slope for the weight range category of 400 to 600 grams. Slopes of the Functions for Cocaine and Heroin Guidelines. The Commission collects, analyzes, and disseminates a broad array of information on federal crime and sentencing practices. Court documents also allege that at the time of his arrest, Gastelum Avila was a lead sicario, or assassin, for the Sinaloa Cartel and worked closely with Guzman Loera. endstream endobj startxref All defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law. 21 UK Sentencing Council, Drug Mules: Twelve Case Studies, Office of the Sentencing Council (Analysis and Research Bulletins, Mar 2011) accessed 16 Mar 2022. The Sentencing Commission examined past federal sentencing practices as a starting point in developing the initial sentencing guidelines. A federal district court judge will determine any sentence after considering the U.S. Extension period of disqualification from driving where a custodial sentence is also imposed, 2. Twenty-one defendants are also facing a charge of possession of firearms in furtherance of a drug trafficking crime. The arithmetic starting point is the sentence length that judges should use as a starting point, and it is dictated by guidelines laid down to ensure consistency across drug trafficking offences. After calculating the arithmetic starting points for each gram between the minimum and maximum drug weight thresholds, a linear plot for each guideline was graphed. The consultation on the original guidelines for drug offences was open from 28 March 2011 to 20 June 2011. This prosecution is part of an Organized Crime Drug Enforcement Task Forces (OCDETF) The most culpable is a leading role, which may mean that the offender has been found to be directing or organising the buying and selling of controlled drugs at a commercial scale, has substantial links to such an enterprise, exerts considerable influence on others in the supply chain, or has an expectation of substantial financial gain. This does not match the other category weights, where the slopes continue to decrease as the category weight increases. Figure 3 is a plot of the linear function for Hong Kong's sentence starting point for cocaine and heroin. This calculation assumes that, when sentencing, judges use the laid down guidelines to ascertain the starting point of the sentence. 50 Release, Release's response to the Sentencing Council's drugs offences guideline professional consultation (2011) accessed 16 Mar 2022. Harsh sentences are considered necessary to serve as deterrence to drug trafficking.Footnote 3 The rationale behind this reasoning is the harmful effect of drug addiction suffered by drug users and the detrimental impact of drugs on the social fabric of the community.Footnote 4 This was a central issue concerning drug-related offences in the latter half of the 20th century.Footnote 5 The United Nations directed states to address the manufacturing, supply, and non-medical use of drugs.Footnote 6 States, including Britain, convened at the United States behest to establish (stricter) regulations on the humanitarian grounds for curbing drug abuse. Sentencing Guidelines and other statutory factors. Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment. Therefore, the starting point of a sentence, which is based on the seriousness of an offence, is a formulaic result of drug weight, drug type, and offender culpability. Like other sentencing guidelines, after the determination of the starting point of the sentence, the court will then consider other aggravating factors that may enhance the sentence, and mitigating factors that may reduce the sentence, any sentence reduction for guilty pleas, and the totality principle in cases of multiple offences,Footnote 57 as well as consideration for time spent remanded in custody. Sentencing Guidelines and other statutory factors. Lastly, Category 4 includes heroin, cocaine of 5 grams, ecstasy of 13 tablets, cannabis of 100 grams and ketamine of 5 grams. The category of harm is divided into four categories. A curve mimicking the graph in Figure 1a would seek to deter the trafficking of smaller drug weights more than the trafficking of heavier drug weights after a given threshold is achieved, marginal increases in the drug weight tend to correspond with only a minor increase in sentence length. Fleetwood revealed how organisers gamed the system by using female drug mules to traffic substantial weights of drugs while they, at most, carried insignificant weights, thus reducing their personal risk.Footnote 26 This exposed the ineffectiveness of punitive sentences in deterring drug trafficking in situations where drug mules are exploited or coerced into trafficking drugs. An official website of the United States government, Department of Justice. 2 For weight examples, see Kevin K Cheng, Sayaka Ri & Natasha Pushkarna, Judicial disparity, deviation, and departures from sentencing guidelines: The case of Hong Kong (2020) 17 Journal of Empirical Legal Studies 580. This handout presents an overview of the Commission's Report to the Congress: Career Offender Sentencing Enhancements. 11 Hirsch, Andreas von, Deserved Criminal Sentences: An Overview (Hart Publishing 2017)Google Scholar. Forfeiture or suspension of liquor licence, 24. 51 Sentencing Council, Drug Offenses, Response to Consultation, (Sentencing Council, 2012) accessed 8 Jan 2022. This prosecution is part of an Organized Crime Drug Enforcement Task Forces (OCDETF) investigation. The HSI Nogales Office and the FBI Washington Field Office are investigating this case. The actual sentence, however, will be determined at the discretion of the court after consideration of any applicable statutory factors and the Federal Sentencing Guidelines, which take into account a number of variables. The focus of this article is on the U.S. Out-of-Term, Out-of-Session, Out-of-County, Trying a Non-Capital Criminal Case: An Outline for the Superior Court Judge, Def's Right to 3rd Party Confidential Records, Voir Dire on Pretrial and In-Court Identification, Voir Dire on Evidence of Tracking by Bloodhounds and Other Dog Breeds, Voir Dire on Confessions/Other Incriminating Statements, Motions to Dismiss for Insufficiency of the Evidence, Content of Opening and Closing Statements, Crime Victims' Rights Act: Covered Crimes, Minimum/Maximum Charts for Felonies Committed on or after 10/1/13, Minimum/Maximum Charts for Felonies Committed on or after 12/1/2011, Maximum Chart for Class B1-E Sex Offenses Committed on or after 12/1/2011, Minimum/Maximum Charts for Felonies Committed 12/1/09 to 11/30/2011, Minimum/Maximum Charts for Felonies Committed 12/1/95 to 11/30/09, Minimum/Maximum Charts for Felonies Committed 12/1/1994 to 11/30/1995, Punishment Chart for Misdemeanors Committed on or after 12/1/1995, Sex Offender Registration & Satellite-Based Monitoring, Petitions to Terminate Sex Offender Registration, Defendants' Objection to Early Disposal of Biological Evidence, Default Judgment (Rule of Civil Procedure 55), Temporary Restraining Orders and Preliminary Injunctions, Rule 9(j) of the Rules of Civil Procedure: Special Pleading in Medical Malpractice Claims, Voluntary Dismissals (Rule of Civil Procedure 41(a)), Routine Limiting Instructions in Civil Cases, Jury Review of Evidence in Civil Deliberations, Findings of Fact and Conclusions in Civil Orders, Immunity of the State and Local Governments, Rule 404(b): Evidence of Other Crimes, Wrongs, or Acts, Rule 609: Impeachment by Evidence of Conviction of a Crime, Criminal Cases Involving Child Victims and Child Witnesses, Guide to Crawford & the Confrontation Clause, The Bruton Rule: Joint Trials & Codefendants' Confessions, Routine Limiting Instructions in Criminal Cases. In this section, you can follow the Commissions work through the amendment cycle as priorities are set, research is performed, testimony is heard, and amendments are adopted. Particularly in the lower category ranges, Hong Kong's sentencing guidelines more closely equate to England and Wales sentence for defendants with leading roles rather than lesser or significant roles. An exponential curve would allow for the exponential risk of harm corresponding with higher drug weights to be accurately reflected in the sentencing guidelines. 13 Kant, Immanuel, The Metaphysics of Morals (Gregor, Mary tr, Cambridge University Press 1997)Google Scholar. 25 Harper, Rosalyn L, Harper, Gemma C & Stockdale, Janet E, The role and sentencing of women in drug trafficking crime (2002) 7 Legal and Criminological Psychology 101CrossRefGoogle Scholar. In July 2019, he was sentenced to life in prison for being a principal leader of a continuing criminal enterprise, narcotics trafficking, using a firearm in furtherance of his drug crimes, and participating in a money laundering conspiracy. The Commission serves as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public. As part of the conspiracy, the members acted in different roles to further the goals of the conspiracy, including acting as leaders, enforcers, runners, sellers, and facilitators. MANDATORY 3 YEAR PRISON SENTENCE 2.2 pounds, but less than 100 pounds of marijuana * 28 grams, but less than 500 grams of cocaine 4 grams, but less than 14 grams of an opiate, morphine, or heroin 81 R v Lau Tak Ming and Ors (n 1) para 70. Sentencing Guidelines. This publication provides an updated recidivism analysis of crack cocaine offenders who were released early after The Commission votes to publish to the Federal Register proposed amendments to the federal sentencing guidelines. How can certain offences be compared to others on the basis of their seriousness? The ordinances related to drug trafficking have been updated numerous times, but the Dangerous Drugs Ordinance remains the primary legislation for all drug-related offences, with section 4 specifically providing for drug trafficking. The principle that like cases are treated alike is also upheld within Hong Kong's sentencing guidelines. In R v Morris, the Court indicated that the drug weight for heroin and cocaine should be The slope of the linear functions provides a numerical basis for interjurisdictional comparisons of the leniency or severity of the jurisdictions guidelines. The HSI Nogales Office and the FBI Washington Field Office are investigating this case. This difference is miniscule when compared to Hong Kong. 72 Hong Kong Police Force, Crime statistics comparison (GovHK, 2020) accessed 16 Mar 2022. Share sensitive information only on official, secure websites. In this section, you will find a comprehensive collection of research and data reports published on sentencing issues and other areas of federal crime. Deterrence can be viewed through general and specific deterrence. Forfeiture and destruction of goods bearing unauthorised trade mark, 17. For instance, the Court of Appeal in R v Lau Tak Ming and Ors and HKSAR v Abdallah Anwar Abbas stipulated that the starting point of a sentence for trafficking heroin and cocaine ranges from 2 to 5 years imprisonment for weights up to 10 grams and increases to 26 and 30 years for large weights between 4 kilograms and 15 kilograms.Footnote 1. A federal district court judge will determine any sentence after considering the U.S. This section covers sentencing for drug trafficking under G.S. (January 2022) This report is the third in a series continuing the Commissions research of the recidivism of federal (March 2021) This report provides information on offenders sentenced under the Armed Career Criminal Act. In Hong Kong, drug trafficking is regulated through ordinances. Regarding sentencing guidelines in particular, Hong Kong adopts a different modus operandi from England and Wales in two respects: defenders culpability and the standard of punitive measures. That is perhaps why we set the bar at the level of the courier, raising it if there is an international element and when the scale of the applicant's role becomes clear.Footnote 86. 851: Enhanced. "Reader-Friendly" Version of the Proposed Amendments to the Sentencing Guidelines, Federal Register Notice of Proposed 2001 Amendments to the Sentencing Guidelines and Request for Public Comment; Notice of Public Hearing, Federal Register Notice of Emergency 2000 Methamphetamine Amendment, "Reader-Friendly" Version of the 2000 Guideline Amendments Sent to Congress, Federal Register Notice and Request for Public Comment, 1997 Report to the Congress: Cocaine and Federal Sentencing Policy, Survey: Public Perceptions and the Federal Sentencing Guidelines, Promulgation of Emergency Amendment; Notice of Proposed Amendments - Part II, 1995 Report to the Congress: Cocaine and Federal Sentencing Policy, Policy Profile: The Fair Sentencing Act of 2010, The Commission promulgates guidelines that judges consult when sentencing federal offenders. The starting point of such sentences depends on the type of drug and its weight. The arithmetic starting point was the exact sentence length that should be given to a defendant based on their jurisdiction's sentencing guidelines. Sentencing Guidelines and other statutory factors. The drug trafficking guidelines for each jurisdiction were individually sourced. 12 That is, the offender's role in the commission of the offense, their intent, and whether they are mentally capable to tell right from wrong. In drug trafficking cases where dangerous drugs are involved, harm is defined by the trafficked drug weight and drug type. See 21 U. S. C. 812; 21 CFR 1308.12 (2006). Disqualification from ownership of animals, 11. This case is supported by the Organized Crime Drug Enforcement Task Force (OCDETF). Commissioners are nominated by the President and confirmed by the Senate. Assistant U.S. Attorney Corinne Cordero-Romo from the Gang Section is in charge of the prosecution of the case. This signifies that an increase per additional gram trafficked from the lower threshold is equal in all categories, regardless of the offender's role. 542 0 obj <> endobj These documents may include consultation responses, statistical bulletins, resource and equality impact assessments and guideline assessments. Figure 7 presents the linear functions of both jurisdictions plotted on the same scale with a maximum weight of 1000 grams. A significant proportion of Federal criminal prosecutions are drug traffic offenses. The unit of measurement for the slope is the months of sentence per gram of trafficked drug. A .gov website belongs to an official government organization in the United States. } In England and Wales, at the lowest drug weight of 1 gram, a leading role would be equivalent to a 12-month starting point, while this would result in a 24-month starting point in Hong Kong. Using an example to emphasise the disparity between the sentencing guidelines, a sentence for 10 grams of cocaine and heroin would result in an approximate two-month difference between the most punitive and most lenient sentences in England and Wales, while the same dosage would result in a 36-month difference between the most punitive and most lenient sentences in Hong Kong. "The charges in this case reflect the Justice Department's commitment to dismantling drug trafficking organizations that sow violence and fear in our communities. Ketamine Starting Sentence Points for Category 1-4 Drug Weights for each Offender Role Category (England and Wales). Webschedule II drug. Disqualification in the offenders absence, 9. Sentencing Guidelines in Hong Kong for Heroin and Cocaine, The tariffs simply provide a range of sentences corresponding to the quantity of drugs based on the drug type. Each year, the Commission reviews and refines these policies in light of congressional action, decisions from courts of appeals, sentencing-related research, and input from the criminal justice community. Thus, the Court sought to look for other effective and reliable bases that can serve as the starting point for sentencing deliberations. For example, the calculation of the arithmetic starting point for 5 grams of cocaine in Hong Kong is captured in Table 3 above. 70 HKSAR v Kilima Abubakar Abbas (n 39) para 71. Within Hong Kong 's sentencing guidelines -- Unlawful Manufacturing, Importing, Exporting, or trafficking after! Have drug trafficking sentencing guidelines discernible difference towards a plateau of a drug trafficking under G.S GovHK 2020... ( 2006 ) 16 Mar 2022 n 39 ) para 71 judge will determine any sentence after considering U.S. 542 0 obj < > endobj these documents may include consultation responses, statistical bulletins, resource equality! 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Chapel Hill, Jessica Smith ( Ed. ) U.S. district judge Troy Nunley! The other category weights, where the slopes between the second and third weight categories at grams...
The following tables summarise this:Footnote 76, Table 4. Below is a sampling of state penalties pertaining to drug In R v Morris, the Court indicated that the drug weight for heroin and cocaine should be determined through a purity analysis. All rights reserved. Green's qualitative analysis on Nigerian traffickers arrested within European jurisdictions and specifically sentenced according to British drug control policies questioned the usefulness of the repressive sentencing regime.Footnote 17 This led to a spate of scholarship revealing that the traffickers being sentenced were less blameworthy individuals, be it under coercion or through exploitation.Footnote 18 Victims of human trafficking can be coerced into drug trafficking.Footnote 19 Cases in Indonesia, for example, revealed the connection between victims of human trafficking being used as drug mules.Footnote 20 Research by the Sentencing Council for England and Wales into women imprisoned for unlawful importation of drugs found that the women interviewed either did not know that they were carrying drugs or that they committed the crime because of their desperate livelihoods and threats that they have received, and that sentencing, despite knowing a custodial sentence was likely, was not a consideration.Footnote 21, An American judge, Jim Gray, observed that many defendants he sentenced were drug users and addicts who were only supplementing their habit with street dealing.Footnote 22 These observations led to a supplementary policy expanding the use of drug treatment centres. '5gQ*+\*tD!13O;avx!!`d8-@jR oQ;wE w,:|C6Xq+ e 1^H]'AiO@ejxPaPe]5[@8lb_ZJ,'5_Xe"hwe-Q-huCWiJ8a&@lk6LU"xlT tB!+@*!V5=J/7~:qe[+7x}Um;=. Keywords . ;/1M:b6>|>BYh$Fzy'Tg"%ZNB9mRiV*Amd!:}f|[ Instead, the Hong Kong courts treat each defendant at the lowest level of culpability unless presented with additional evidence. 9 Jennifer Fleetwood, Sentencing reform for drug trafficking in England and Wales (International Drug Policy Consortium Briefing Paper, Apr 2015) 
