Sentencing Law and Policy

"Support for legalizing marijuana grows rapidly around U.S."

The title of this post is the headline of this piece from today's Washington Post.  Here are a few excerpts:

At last week's International Drug Reform Conference, activists gamed specific proposals for taxing and regulating pot along the lines of cigarettes and alcohol, as a bill pending in the California Legislature would do. The measure is not expected to pass, but in urging its serious debate, Gov. Arnold Schwarzenegger (R) gave credence to a potential revenue source that the state's tax chief said could raise $1.3 billion in the recession, which advocates describe as a boon.

There were also tips on lobbying state legislatures, where measures decriminalizing possession of small amounts have passed in 14 states. Activists predict half of states will have laws allowing possession for medical purposes in the near future.

Interest in medical marijuana and easing other marijuana laws picked up markedly about 18 months ago, but advocates say the biggest surge came with the election of Barack Obama, the third straight president to acknowledge having smoked marijuana, and the first to regard it with anything like nonchalance. "As a kid, I inhaled," Barack Obama famously said on the campaign. "That was the whole point."

In office, Obama made good on a promise to halt federal prosecutions of medical marijuana use where permitted by state law. That has recalibrated the federal attitude, which had been consistently hostile to marijuana since the early 1970s, when President Richard Nixon cast aside the recommendations of a presidential commission arguing against lumping pot with hard drugs.

Some recent related posts:

• "Attorney General Announces Formal Medical Marijuana Guidelines"
• California moving on various fronts toward possible legalization of marijuana
• "U.S. Support for Legalizing Marijuana Reaches New High"
•  A potent pitch for decriminalizing marijuana
• "Medical Marijuana Muddle"
• Republican governor signals openness to legalizing marijuana
• "Marijuana Nation: The New War Over Weed"
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana
• AMA changes its position to be more open to medical marijuana

AMA changes its position to be more open to medical marijuana

As detailed in this Los Angeles Times article, which is headlined "Medical marijuana gets a boost from major doctors group," on Tuesday the American Medical Association"urged the federal government to reconsider its classification of marijuana as a dangerous drug with no accepted medical use, a significant shift that puts the prestigious group behind calls for more research." Here are more details:

The nation's largest physicians organization, with about 250,000 member doctors, the AMA has maintained since 1997 that marijuana should remain a Schedule I controlled substance, the most restrictive category, which also includes heroin and LSD. In changing its policy, the group said its goal was to clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug.

"Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis," said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was "insufficient to satisfy the current standards for a prescription drug product."

The decision by the organization's delegates at a meeting in Houston marks another step in the evolving view of marijuana, which an AMA report notes was once linked by the federal government to homicidal mania. Since California voters approved the use of medical marijuana in 1996, marijuana has moved steadily into the cultural mainstream spurred by the growing awareness that it can have beneficial effects for some chronically ill people.

Noting significant biases in pot policies and practices

CNN has this notable new commentary headlined "Pot acceptable?  Not for young and nonwhite," which is authored by Stephen Gutwillig of the Drug Policy Alliance. Here are extended excerpts from an important piece:

This year is a watershed year in pot politics.  The Obama administration recently announced it would defer to state medical marijuana laws and stop federal prosecutions of patients and providers who comply with them.  In California, the tanking economy inspired Gov. Arnold Schwarzenegger to call for debating marijuana taxation and regulation, a bill was introduced in Sacramento to do just that, and four separate ballot initiatives are circulating to allow voters the chance to decide the issue for themselves.

Schwarzenegger's position was echoed by New York Gov. David Paterson and by Arizona Attorney General Terry Goddard, who suggested legalizing pot could cripple Mexican and U.S. gangs.  The unprecedented momentum to question marijuana prohibition is being fueled by a widely remarked-upon phenomenon — the cultural mainstreaming of marijuana.

From Showtime's established hit "Weeds" to the "Is Pot Already Legal?" cover of Fortune magazine in September, marijuana is commanding attention and an odd kind of respect for its sheer popularity and massive revenues.  Marie Claire magazine and the "Today Show" profiled "stiletto stoners," stressed-out women professionals who unwind with a doobie instead of a cosmo.  And in a recent style feature, the Los Angeles Times gushed that "cannabis culture is coming out of the closet," citing its ubiquity across the spectrum of pop culture and high-end design....

Pot is indeed flourishing in the mainstream as never before, but the sometimes giddy discussion overlooks a sinister parallel phenomenon: More people are being arrested for pot crimes than ever; they are increasingly young and disproportionately nonwhite.

In 2008, the police arrested 847,864 people nationwide for marijuana violations, according to the 2008 FBI Uniform Crime Report.  Pot arrests represent fully half of all drug arrests reported in the United States.  The overwhelming majority — a whopping 89 percent — were charged with possession only.  Most striking, the marijuana arrest rate in the United States has nearly tripled since 1991.

More people are being arrested for pot crimes than ever; they are ... young and disproportionately nonwhite. Examples from both coasts illustrate this.  In California, according to the Center on Juvenile and Criminal Justice, crime arrest rates have generally plummeted statewide from 1990 to 2008 by an average of 40 percent.  Drug possession arrests for everything but marijuana collectively fell by nearly 30 percent.  But during that same 18-year period, arrests for marijuana possession in California skyrocketed 127 percent.  In 2008, more Californians were arrested for pot offenses than any year since decriminalization took effect 34 years ago.

Similarly, New York state decriminalized simple marijuana possession in the 1970s.  But under Mayors Rudolph Giuliani and Michael Bloomberg, New York City has become one of the marijuana arrest capitals of the world — 40,300 arrests last year. In the years between 1997 and 2008, the NYPD made 12 times as many pot possession arrests as in the previous 12 years, according to a study by the New York Civil Liberties Union.

How can the notion that marijuana is "here to stay" coexist with these rates of marijuana arrests?  Apparently because the people caught in the crossfire aren't considered part of the mainstream.  In California, African-Americans are three times as likely as whites to be arrested for a pot crime...  In New York City, blacks and Latinos — who represent about half the city's population — accounted for 86 percent of everyone charged with pot possession in 2008....

Widespread discussion of everyday marijuana consumption is helping turn the tide against decades of failed marijuana prohibition.  However, too much of that conversation is ignoring the people most impacted by our punitive policies.  We must end pot prohibition and stop the massive number of arrests and biased enforcement that are at its core.

Some recent related posts:

• "Attorney General Announces Formal Medical Marijuana Guidelines"
• California moving on various fronts toward possible legalization of marijuana
• "U.S. Support for Legalizing Marijuana Reaches New High"
•  A potent pitch for decriminalizing marijuana
• "Medical Marijuana Muddle"
• Republican governor signals openness to legalizing marijuana
• "Marijuana Nation: The New War Over Weed"
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana

Where sports, tragedy and the origins of bad federal sentencing law converge

I received via e-mail this reminder from the folks at FAMM to set my DVR to ESPN tonight in order to record a documentary on a sports story and personal tragedy that would become the back-story to the origins of bad federal sentencing law on cocaine and crack penalties:

FAMM's president Julie Stewart is featured in the film "Without Bias," which tells the now-legendary story of University of Maryland college basketball star Len Bias.  In 1986, Bias was drafted by the Boston Celtics.  Later that night, he died from a cocaine overdose while celebrating his success.  His untimely death rocked the nation and led to the creation of the mandatory minimum drug sentences that are still on the books today.  To learn more and see a preview of the film, visit ESPN's website here.

The sentencing details of how Bias's death impact federal sentencing legislation is captures in part in Chapter 6 of the US Sentencing Commission's 1995 report to Congress on cocaine policy:

A few weeks after Bias's death, on July 15, 1986, the United States Senate's Permanent Subcommittee on Investigations held a hearing on crack cocaine.  During the debate, Len Bias's case was cited 11 times in connection with crack.  Eric Sterling, who for eight years served as counsel to the House Judiciary Committee and played a significant staff role in the development of many provisions of the Drug Abuse Act of 1986, testified before the United States Sentencing Commission in 1993 that the "crack cocaine overdose death of NCAA basketball star Len Bias" was instrumental in the development of the federal crack cocaine laws.  During July 1986 alone, there were 74 evening news segments about crack cocaine, many fueled by the belief that Bias died of a crack overdose.

Not until a year later, during the trial of Brian Tribble who was accused of supplying Bias with the cocaine, did Terry Long, a University of Maryland basketball player who participated in the cocaine party that led to Bias's death, testify that he, Bias, Tribble, and another player snorted powder cocaine over a four-hour period. Tribble's testimony received limited coverage.

State judge calls for repeal of school-zone mandatory sentences

This local articlefrom Pennsylvania, which is headlined "Berks judge: End mandatory sentences involving drug sales in school zones," reports on a state judge complaining about the consequences of mandatory minimum sentencing terms for drug sales in school zones.  Here is how the article starts:

A Berks County judge called for immediate action from legislators to repeal a law allowing prosecutors to seek mandatory sentences for drug dealers selling within 1,000 feet of a school. "We cannot continue to fill up the prisons with nonviolent people who sell marijuana," Judge Linda K.M. Ludgate said. "We are in a state budget crisis. This law no longer makes sense."

Ludgate, head of criminal court, was on a Pennsylvania Commission on Sentencing advisory committee that concluded the law must be repealed. The panel's report was presented to the House Judiciary Committee.  "We cannot wait any longer for this law to be repealed," said Ludgate, also a member of the Pennsylvania Commission on Sentencing.  "It's no longer practical.  The legislators must decide whether they want to fill up prisons with murderers and rapists or people selling marijuana."

The numbers show Berks County prosecutors imposed mandatory sentences for 186 cases, or 63 percent, of the 294 mandatory-sentence cases in 2008.  The law requires judges to impose mandatory sentences when requested by prosecutors.  Prosecutors statewide obtained mandatory sentences in 314 drug-zone cases, or 18 percent of the 1,732 mandatory sentences handed down in 2008.  The report concluded the 1997 drug-free school zone is clogging up prisons, not shielding children from drugs.

"There is no relationship between the school zone and selling drugs to kids," said Mark Bergstrom, executive director of the Pennsylvania Commission. "If you are selling drugs to another person at 2 in the morning, and there are no kids out, you still face a mandatory sentence," he said. "This is not the intention of the law."

Recent related post:

• New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

Senator Durbin responds to Washington Post editorial opposing crack/powder parity

The Washington Post has printed this letter from US Senator Dick Durbin, which responds to the Post's editorial (discussed here) that criticized Durbin's proposed legislation to eliminate the sentencing disparity between crack and powder cocaine.  Here are excerpts:

The editorial wrongly argued that crack is more addictive and associated with more violence than powder cocaine. It is that flawed logic that justified the original sentencing disparity.

Countless studies have shown that there's little difference in the physiological impact of crack and powder cocaine. The American Medical Association reports that "the physiological and psychoactive effects of cocaine are similar" regardless of whether the form is crack or powder.

Furthermore, the U.S. Sentencing Commission report you cited actually found that 10 percent of crack offenders were involved in violence -- not 25 percent, as the editorial asserted, using a different definition of "violence" -- while 6 percent of powder offenders were involved in violence. That 4-percentage-point difference hardly justifies a disparity in mandatory minimum sentences.

The editorial also failed to note that my bill would significantly increase penalties for violent and large-scale drug traffickers, refocusing limited federal resources on the worst offenders.

"On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime"

The title of this post is the title of this timely new article by Professor Robert Mikos in the latest issue of the Vanderbilt Law Review.  Here is the abstract:

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans.  Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana not only survive careful preemption analysis, they constitute the de facto governing law in thirteen states.  This Article argues that these state laws and most related regulations have not been and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress’s preemption power by the anti-commandeering rule, properly understood.  The Article develops a new framework for analyzing the boundary between permissible preemption and prohibited commandeering — the state-of-nature benchmark. The state-of-nature benchmark eliminates much of the confusion that has clouded disputes over the legal status of state medical marijuana laws.

Just as importantly, the Article demonstrates why these state laws matter in a more practical sense.  By legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug.  As a result, medical use of marijuana has survived and indeed thrived in the shadow of the federal ban.  The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom it is the states, and not the federal government, that have emerged the victors in this struggle.  Although the Article focuses on medical marijuana, the framework developed herein could be applied to any issue pitting permissive state laws against harsh federal bans, including abortion, sports gambling, and firearms possession.

Washington Post editorial argues against completely eliminating crack/powder sentencing disparity

In this new editorial, which is headlined "The right sentence: As Congress weighs the cocaine sentencing disparity, it should remember crack's dangers," the Washington Post comes out against equalizing the sentences for crack and powder cocaine.  Here is the heart of the Post's pitch:

The Justice Department has announced its support for reducing crack penalties to mirror exactly those for powder.  A bill recently introduced by Sen. Richard J. Durbin (D-Ill.) would codify this 1-to-1 ratio into law.  Supporters of such a move point to the racial disparities between arrests for crack and powder, and argue that anything less than parity would be viewed by African Americans as a decision to continue targeting black men for tougher sentences.  They also note that studies have shown that the addictive nature of crack has been significantly exaggerated and that no other drug carries with it different penalties depending on how it is consumed.

But appearances alone cannot justify the move contemplated by the Justice Department and the Durbin bill.  A 2007 report from the U.S. Sentencing Commission shows that smoking crack delivers a faster, more intense high than snorting powder and that this high is more short-lived, thus compelling most crack users to seek additional doses of the drug.  The differences in addiction rates between crack and powder are not enormous, but they are real, and the study also notes that crack users often experience faster rates of physical deterioration than do those who consume powder.  The report notes that roughly one-fourth of crack offenders are associated with violence, and that this rate exceeds that for powder cocaine offenders.  As in the 1980s, predominantly African American communities continue to bear the brunt of the crime and addiction brought on by this awful drug.

These facts suggest that there should be some difference in the penalties for crack and powder cocaine, but how much?  This is a difficult question to answer with precision, so perhaps the best solution would be to eliminate the mandatory minimums for both crack and powder and build into the sentencing guidelines tougher penalty ranges for crack that judges could apply on a case-by-case basis.

Like most efforts to assess a complex issue in a short space, this Post editorial is more confusing than compelling.  For starters, the federal sentencing guidelines already have much tougher penalty ranges for crack that judges must apply on a case-by-case basis after Booker.  Second, the fundamental problem with both crack and powder sentencing is an undue reliance on drug weights rather than offense role in setting sentencing ranges.  Third, given the apparent "success" of the recent retroactive reduction in crack sentences, it is a shame that the Post relies more on tired old debates than new real-world developments in assessing this important issue.

California moving on various fronts toward possible legalization of marijuana

This New York Times article, headlined "Push to Legalize Marijuana Gains Ground in California," reports on the latest counter-insurgency in the war on drugs.  Here are some details from the start of the article:

These are heady times for advocates of legalized marijuana in California — and only in small part because of the newly relaxed approach of the federal government toward medical marijuana.

State lawmakers are holding a hearing on Wednesday on the effects of a bill that would legalize, tax and regulate the drug — in what would be the first such law in the United States. Tax officials estimate the legislation could bring the struggling state about $1.4 billion a year, and though the bill’s fate in the Legislature is uncertain, Gov. Arnold Schwarzenegger, a Republican, has indicated he would be open to a “robust debate” on the issue.

California voters are also taking up legalization. Three separate initiatives are being circulated for signatures to appear on the ballot next year, all of which would permit adults to possess marijuana for personal use and allow local governments to tax it. Even opponents of legalization suggest that an initiative is likely to qualify for a statewide vote.

“All of us in the movement have had the feeling that we’ve been running into the wind for years,” said James P. Gray, a retired judge in Orange County who has been outspoken in support of legalization. “Now we sense we are running with the wind.”

Some recent related posts:

• "Attorney General Announces Formal Medical Marijuana Guidelines"
• "U.S. Support for Legalizing Marijuana Reaches New High"
•  A potent pitch for decriminalizing marijuana
• "Medical Marijuana Muddle"
• Republican governor signals openness to legalizing marijuana
• "Marijuana Nation: The New War Over Weed"
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana

The new medical marijuana regulatory challenge for states and localities

This morning's New York Times has this intriguing new article on medicial marijuana regulation, which is headlined "States Pressed Into New Role on Marijuana."  Here are excerpts:

For years, since the first medical marijuana laws were passed in the mid-1990s, many local and state governments could be confident, if not complacent, knowing that marijuana would be kept in check because it remained illegal under federal law, and that hard-nosed federal prosecutors were not about to forget it.

But with the Justice Department’s announcement last week that it would not prosecute people who use marijuana for medical purposes in states where it is legal, local and state officials say they will now have to take on the job themselves.

In New Hampshire, for instance, where some state legislators are considering a medical marijuana law, there is concern that the state health department — already battered by budget cuts — could be hard-pressed to administer the system. In California, where there has been an explosion of medical marijuana suppliers, the authorities in Los Angeles and other jurisdictions are considering a requirement that all medical dispensaries operate as nonprofit organizations.

“The federal government says they’re not going to control it, so the only other option we have is to control it ourselves,” said Carrol Martin, a City Council member in this community north of Denver, where a ban on marijuana dispensaries was on the agenda at a Council meeting the day after the federal announcement.

At least five states, including New York and New Jersey, are considering laws to allow medical marijuana through legislation or voter referendums, in addition to the 13 states where such laws already exist.  Even while that is happening, scores of local governments in California, Colorado and other states have gone the other way and imposed bans or moratoriums on distribution even though state law allows it.

Some health and legal experts say the Justice Department’s decision will promote the spread of marijuana for medical uses because local and state officials often take leadership cues from federal policy. That, the experts said, could lead to more liberal rules in states that already have medical marijuana and to more voters and legislators in other states becoming comfortable with the idea of allowing it. For elected officials who have feared looking soft on crime by backing any sort of legalized marijuana use, the new policy might provide support to reframe the issue.

Ain't it cool to be able to watch laboratories of democracy at work.  I sure hope we see lots of different kinds of experimenting with marijuana rules and regulations, as well as lots of different efforts to study and assess which regulatory structures prove to be most effective in balancing personal liberty and public safety.

Some recent related posts:

• "Attorney General Announces Formal Medical Marijuana Guidelines"
• "U.S. Support for Legalizing Marijuana Reaches New High"
•  A potent pitch for decriminalizing marijuana
• "Medical Marijuana Muddle"
• Republican governor signals openness to legalizing marijuana
• "Marijuana Nation: The New War Over Weed"
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana

"Medical Marijuana Muddle"

The title of this piece is the headline of this new commentaryfrom Jacob Sullum at Reason.  The piece is subtitled "The Obama administration’s new policy may not make much difference in practice," and here are snippets that explain Sullum's concerns:

This week's memo, which White House spokesman Robert Gibbs says merely describes what "has been administration policy since the beginning of this administration in January," helps explain these apparent inconsistencies.  It tells federal prosecutors in the 14 states that recognize cannabis as a medicine they "should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

In California especially, that phrasing leaves a lot of wiggle room for federal meddling.  Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as "primary caregivers."  Patients who are not up to growing marijuana on their own can still organize as "collectives" or "cooperatives," but local officials disagree with state officials and each other about what that means.  Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal.

Cooley’s position may be welcomed by the DEA and by like-minded officials in jurisdictions such as San Diego, but it conflicts with the views of more cannabis-tolerant officials in places such as Oakland and San Francisco.  It also contradicts guidelines issued last year by California Attorney General Jerry Brown, who says patient collectives may charge for marijuana, as long as they do not take in more revenue than is necessary to cover their overhead and operating expenses.  Until the law is clarified by the courts or the legislature, the federal government will have plenty of opportunities to continue interfering with the distribution of medical marijuana.

Some recent related posts:

• "Attorney General Announces Formal Medical Marijuana Guidelines"
• "U.S. Support for Legalizing Marijuana Reaches New High"
•  A potent pitch for decriminalizing marijuana
• Republican governor signals openness to legalizing marijuana
• "Marijuana Nation: The New War Over Weed"
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana

A potent pitch for decriminalizing marijuana

Ethan Nadelmann, the executive director of the Drug Policy Alliance, has this new Politico commentary titled "Now, let’s decriminalize marijuana."  The piece praises the new US Justice Department guidelines that discourage federal prosecution of persons complying with state medical marijuana laws (basics here), and the piece concludes with these notable insights, predictions and pitches:

A new Gallup Poll out Monday found that the proportion of Americans who favor making marijuana legal is now 44 percent — almost double what it was in the mid-1980s.  Among Democrats, support for legalizing marijuana jumped from 41 percent in 2005 to 54 percent now.  Obama’s drug czar, Gil Kerlikowske, thinks he’s protecting the president by repeatedly insisting that “marijuana legalization is not part of my vocabulary or the administration’s,” but it’s going to be increasingly difficult for him to maintain that posture if support for making marijuana legal continues to increase.

I don’t expect Obama to provide any sort of bold leadership on the marijuana issue, mostly because presidents rarely provide any sort of leadership on hot-button issues involving cultural conflict, personal behavior and morality.  Both the new guidelines, and the drug czar’s stated desire to avoid the marijuana issue as much as possible, suggest that the Obama administration prefers to let this issue play out at the state and local level, with little in the way of federal support or interference.

Neither the administration nor Congress is ready for a serious debate on medical marijuana, much less on ending marijuana prohibition, at this time.  The only members of Congress who have been willing to introduce marijuana decriminalization legislation are Rep. Barney Frank (D-Mass.) and libertarian Rep. Ron Paul (R-Texas).  Both know that many of their colleagues agree in principle, but no Republicans and only a handful of Democrats are ready to say so publicly.

It’s only a matter of time before marijuana is taxed, controlled and regulated in the United States. The tragedy is that tens of billions of dollars will continue to be wasted, and millions of people arrested and otherwise harmed by the marijuana laws, until that time . It’s up to us — as responsible citizens who care about freedom, justice and compassion — to ensure that this day comes sooner, not later.

Some recent related posts:

• "U.S. Support for Legalizing Marijuana Reaches New High"
• Republican governor signals openness to legalizing marijuana
• "Marijuana Nation: The New War Over Weed"
• Talk of drug courts, but not major policy changes, in drug war from Obama team
• "America Should Decriminalize Drugs":
• Thoughtful academic thoughts on ending marijuana prohibitions
• "Time For Marijuana Legalization?"
• Renewing a lawyerly pitch for ending drug prohibition
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana

"U.S. Support for Legalizing Marijuana Reaches New High"

The title of this post is the headline of this new Gallup poll report.  Here are some of the very notable particulars: 

Gallup's October Crime poll finds 44% of Americans in favor of making marijuana legal and 54% opposed. U.S. public support for legalizing marijuana was fixed in the 25% range from the late 1970s to the mid-1990s, but acceptance jumped to 31% in 2000 and has continued to grow throughout this decade.

Public opinion is virtually the same on a question that relates to a public policy debate brewing in California -- whether marijuana should be legalized and taxed as a way of raising revenue for state governments.  Just over 4 in 10 Americans (42%) say they would favor this in their own state; 56% are opposed.  Support is markedly higher among residents of the West -- where an outright majority favor the proposal -- than in the South and Midwest. The views of Eastern residents fall about in the middle.

The new findings come as the U.S. Justice Department has reportedly decided to loosen its enforcement of federal anti-marijuana laws by not pursuing individuals who buy or sell small amounts of the drug in conformity with their own states' medical marijuana laws.  This seems likely to meet with U.S. public approval, as previous Gallup polling has found Americans generally sympathetic to legalizing marijuana for medical purposes. In 2003, 75% of Americans favored allowing doctors to legally prescribe marijuana to patients in order to reduce pain and suffering....

Most of the expansion in support for legalizing marijuana since Gallup last measured this in 2005 is seen among women, younger Americans, Democrats, moderates, and liberals.  By comparison, there has been little change in the views of men, seniors, Republicans, independents, and conservatives. Regionally, support has grown the most in the West and Midwest.

Among the most notable findings in this latest poll is the fact that 50% of persons between ages 18 and 49 are reported as favoring making marijuana legal.  Especially since I suspect that this number jump even higher for all voters under 30, I think it will not be long before politicians who are seriously interested in appealing to young voters will have to start showing serious interest in legalizing (or at least decriminalizing) some non-medical marijuana usage.

Some recent related posts:

• "Marijuana Nation: The New War Over Weed"
• NPR coverage of medical marijuana in California
• Republican governor signals openness to legalizing marijuana
• "America Should Decriminalize Drugs":
• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Thoughtful academic thoughts on ending marijuana prohibitions
• "Time For Marijuana Legalization?"
• Terrific commentary and assessment of the war on drugs
• Renewing a lawyerly pitch for ending drug prohibition
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana

"Attorney General Announces Formal Medical Marijuana Guidelines"

The title of this post is the headline of this official press release from the US. Department of Justice.  Here are the highlights (heh, heh, dude, heh, heh, get it.... highlights!):

Attorney General Eric Holder today announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes.  The guidelines make clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws, while underscoring that the Department will continue to prosecute people whose claims of compliance with state and local law conceal operations inconsistent with the terms, conditions, or purposes of those laws.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder said.  "This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws."

The guidelines set forth examples of conduct that would show when individuals are not in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest, including unlawful use of firearms, violence, sales to minors, money laundering, amounts of marijuana inconsistent with purported compliance with state or local law, marketing or excessive financial gains similarly inconsistent with state or local law, illegal possession or sale of other controlled substances, and ties to criminal enterprises.

Fourteen states have enacted laws in some form addressing the use of marijuana for medical purposes.  A copy of the guidelines, in a memo from Deputy Attorney General David W. Ogden to United States Attorneys, can be found here.

ABC News has on-line this new story which reflects some of the early press coverage; the piece is headlined "Medical Marijuana Proponents Breathe Easier Under New Guidelines." 

There are, of course, lots of serious and important things to say about these new DOJ guidelines, but to begin let's have some run imagining alternative headlines for the DOJ press release or media coverage of this story.  I'll start with a few silly possibilities:  "Dude, Federalism Is Such A Trip!" or "New Health Care Reform Development for Grateful Dead Fans" or "Massive Breakout of Glaucoma Predicted in 14 States"

New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

The Pennsylvania Commission on Sentencing late last week released this important research report, which is titled "A Study on the Use and Impact of Mandatory Minimum Sentences."  The study was undertaken at the direction of the state legislature, and it examined 1) the extent to which mandatory sentences are imposed, 2) the processing of mandatory sentencing cases, and 3) the effectiveness of mandatory sentencing with respect to crime reduction.

This local press article, which is headlined "State commission says drug-free school zone law should be repealed," reports on some of the highlights:

In a 490-page report Friday, the Pennsylvania Commission on Sentencing recommended the repeal of the drug-free zone law that prosecutors invoked against Range. The report also advocated raising the threshold of cocaine needed to trigger enhanced penalties for trafficking -- from 2 to 5 grams -- and allowing more drug cases to go through intermediate punishment or boot-camp programs.

The recommendations, part of an overall study of mandatory minimums in the state, offer a change from the mid-1990s, when many of the beefed-up laws were enacted amid a popular mantra of get-tough-on-crime.

Critics say the laws are clogging prisons, breaking state budgets and failing to address the problems they aim to, prompting legislatures to reconsider the wisdom of warehousing offenders when studies show treatment is cheaper and produces less recidivism.

"This year in the budget process was the first year I've heard some serious discussion of the cost, and 'Let's look at those issues,'" said Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, which advises the state on sentencing policy. "It's a rare time when I actually think there can be some progress moving forward with these recommendations."

But that may not prove to be the case, because school zones and other heightened penalties are popular among prosecutors and law enforcement officials.

Northampton County District Attorney John Morganelli is a supporter of the state's mandatory minimums, though he believes that more aren't needed. He said the minimums are a useful plea bargaining tool, because prosecutors can trade them for an admission of guilt. He said the goals of school zones are laudable. "It would be a mistake [to repeal them]," Morganelli said. "It would send a bad message that it's OK to deal drugs in school zones."

U.S. Rep. Charlie Dent, R-Lehigh, wrote Pennsylvania's school zone law in 1997 while serving in the state Legislature. He says it has helped keep drugs away from children. "The real issue is if these people were not in prison and on the streets, what would crime be then?" Dent asked.

The commission's report found school zones are "overbroad" and go beyond the goal of preventing drugs from being dealt to children. It also says the 1,000-feet parameter is problematic in dense urban areas and disproportionately affects minorities.

New Senate bill introduced to eliminate crack/powder federal sentencing disparity

As detailed in this new Washington Post article, which is headlined "Senate Bill Would Eliminate Cocaine Sentencing Disparity," Senator Richard Durbin is championing a new bill to eliminate the crack/powder sentencing disparity in federal law. Here are some of the basics:

The Senate's second-ranking Democrat introduced a bill Thursday that would eliminate the sentencing disparity between crack and powdered cocaine, an issue that has frustrated judges, civil rights advocates and drug reform proponents for more than two decades. Under current law, it takes 100 times more powdered cocaine than crack to trigger the same mandatory minimum sentence. Activists say that disparity disproportionately impacts African Americans.

"The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarcerations," Majority Whip Richard J. Durbin (D-Ill.) said in a statement. "It's time for us to act."

Durbin's bill would also increase the volume of crack cocaine required to trigger a mandatory prison term, as well as stiffen penalties for large-scale drug traffickers and violent criminals.  The Fair Sentencing Act is co-sponsored by Democrats including Judiciary Committee Chairman Patrick J. Leahy (Vt.), Russell Feingold (Wis.), Benjamin L. Cardin (Md.) and Sheldon Whitehouse (R.I.)....

Some law enforcement officials have advocated eliminating the disparity by increasing the penalties for possession of powder cocaine, rather than, as Durbin's bill does, lowering the sentence for crack.  But those calling for a change in the law also cite economic reasons at a time when budgets are tight, noting that half of federal inmates are imprisoned for drug offenses. The U.S. Sentencing Commission has estimated that wiping away the sentencing disparity could save more than $510 million over 15 years, lawmakers said....

A companion bill in the House has passed the House Judiciary Committee and awaits action in the House Energy and Commerce Committee.  The idea won support from President Obama and Vice President Biden on the campaign trail, and Attorney General Eric H. Holder Jr. has also been supportive, but the administration has yet to announce a formal position on the bills before Congress.

I am pleased to hear this news, but I will not start getting too excited about this bill unless and until some some Republican Senators get behind it or until at least the White House and the Attorney General start expressing support.  In other words, I fear it is going to take a lot more than the usual political suspects to turn these kinds of (long-overdue) proposed reforms into a legal reality.

Interesting report on "Crack the Disparity" coalition of the Justice Roundtable

Via e-mail I received an interesting report concerning legislative briefings that took place today in the House and Senate which were entitled, “Crack Cocaine Sentencing: Exploring & Examining the Issues.” Here are the basics:

The breakfast and luncheon briefings brought together Republicans and Democrats, the left and the right, faith-based, academic, agency, and impacted to address this 23 year long issue. Over 13 Senate offices were represented and 26 House offices, in addition to interested persons across the ideological spectrum. The Senate briefing room was full, and there was standing room only on the House side.  Panelists included:

• Chris Byrnes, Author of The Federalist Society’s white paper, “Proposals to Eliminate Sentencing Disparities Between Crack and Powder Cocaine Offenses”
• Lisa Rich, Director of Legislative Affairs, U.S. Sentencing Commission
• Pat Nolan, Vice President, Prison Fellowship
• Paul Butler, former prosecutor & Professor, George Washington Law School
• Lawrence Garrison, impacted person
• Moderator – Hilary Shelton, Director Washington Bureau NAACP

C-SPAN2 covered the briefing on the Senate side. You can view it at this link.

"Cons seek freedom after 'Rocky' reform"

The title of this post is the amusing headline of this New York Post article reporting on the opportunity for some state drug offenders to apply for sentencing relief after New York's recent reform of the harsh Rockefeller drug laws.  Here are the details:

Hundreds of low-level drug offenders were allowed for the first time yesterday to apply for reduced sentences following reform of the harsh Rockefeller drug laws.  "Under the Rockefeller drug laws, we did not treat the people who were addicted.  We locked them up," Gov. Paterson said at Brooklyn Supreme Court. "Families were broken, money was wasted, and we continued to wrestle with a statewide drug problem."

The laws — written in the 1970s under then-Gov. Nelson Rockefeller and considered among the most robust in the nation — were watered down earlier this year in a deal hammered out by Paterson and Democratic lawmakers in Albany.  The changes replaced mandatory prison terms with an emphasis on treatment.

In all, it was determined that about 1,100 inmates statewide were eligible to apply — although it is up to a judge to decide whether a reduction would be approved.  "A good number will be excluded," said Denise O'Donnell, of the state's Division of Criminal Justice Services.... There were 59,053 inmates in New York prisons yesterday.

The criteria for approval include being a nonviolent class B offender sentenced to at least one to three years who has a clean prison record — including having completed drug-treatment programs and getting a GED, for example.... The sentencing judge will review the petitions, and prosecutors will have a chance to argue against any reductions.

Some recent related posts on reforming NY drug sentencing:

• New York commission calling for major drug sentencing reforms
• New York getting closer to dropping the rock
• Might prosecutors keep New York from finally "dropping the rock"?
• New NYCLU report on Rockefeller drug laws
• New York drug sentencing laws finally to get serious reform
• Will there be retroactive sentencing justice for drug defendants in New York?

A thoughtful defense of prosecutorial declination in the Andrew Sullivan pot case

Regular readers may recall the recent kerfuffle over the decision by federal prosecutors to dismiss minor marijuana possession charges against noted blogger Andrew Sullivan (blogged here).  Because I was not quite sure what to make of the case, I asked former federal prosecutor Anthony Barkow, who is now the Executive Director of the Center on the Administration of Criminal Lawat NYU School of Law, if he had some thoughts on the matter.  To may great pleasure, Barkow and one of his NYU students penned a terrific commentary, which can be downloaded in full below.  Here is how the piece starts and ends: 

“Equal justice under the law” is a phrase that graces the walls of courtrooms across America. Unfortunately, it has become all too common in recent decades for lawyers to place too much attention on superficial equality without paying similar heed to the need to do justice.

A recent example involves provocative public intellectual and blogger Andrew Sullivan....

The Magistrate presiding over Sullivan’s case decried what he viewed as differential treatment given to Sullivan compared to others charged with marijuana possession.  He pointed out that the Sullivan declination did not reflect a discretionary decision by the United States Attorney’s never to prosecute the possession of small amounts of marijuana, noting that such persons “are prosecuted routinely.”   The Magistrate rejected the idea that prosecutors should consider collateral consequences when making charging decisions, arguing that the United States Attorney should have charged Sullivan and left to immigration authorities the determination of whether Sullivan would be deported or denied citizenship.  In doing so, the Magistrate ignored the constitutional and practical role prosecutors play as gatekeepers in the criminal justice system, the obligation of prosecutors only to pursue charges that result in proportional punishment, and the fact that prosecutors’ first obligation in all exercises of discretion is to see that justice is done.

Download NYU Sullivan commentary

Important new NACDL report critical of modern drug court movement

As detailed in this news release, the National Association of Criminal Defense Lawyers has today released an important new report on drug courts.  The title of the press release. "Drug Courts Endanger Rights, Block Access To Needed Treatment for Drug Users: Defense Lawyers Call for Major Overhaul," highlights that the NACDL is not in favor of extant drug court models.  Here is the start of the press release, which provides a partial summary of the report:

Drug courts – first created 20 years ago as an emergency response to an epidemic of drug-related criminal cases that clogged courts and prisons – have in many places become an obstacle to making cost-efficient drug abuse therapy available to addicts and reducing criminal case loads, the nation’s largest association of criminal defense attorneys said today.

In too many places, access to treatment comes at the cost of a guilty plea for low-level drug offenses while hard cases are denied and offenders wind up in jail at great expense to taxpayers, a report by the National Association of Criminal Defense Lawyers found. The report flowed out of a two-year task force study of problem-solving courts.

Well-intended prosecutors and judges, generally with little input from the defense bar, often limit entry to treatment to offenders most likely to solve their own problems while insisting that “harder cases” go to jail, at considerable taxpayer expense, the study found. Minorities, immigrants and those with few financial resources are often under-represented in drug court programs.

The full report, which is titled "“America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform,” is available at this link.  This report strikes me as quite an important development in the drug court movement, and thus it is today's must-read for any and everyone who has tended to view drug courts and other problem-solving courts as a positive development and part of a healthy evolution away from unduly punitive tough-on-crime approaches.

This report also seems especially timely in light of President Obama's and Attorney General Holder's apparent affinity for drug courts (as noted in prior posts here and here and here).  Indeed, as evidence by many links below, there have been very few loud voices speaking up against modern drug courts until this new report by NACDL.

Some related posts about drug court programs and research:

• New report on drug courts from The Sentencing Project
• NJ commission endorsing expanding drug courts
• A religious pitch for drug courts
• Terrific NIJ drug court report
• Reexamining drug courts
• Judge Lay advocating drug courts again
• A Mississippi pitch for drug courts and getting smarter on crime and punishment
• Resources on drug courts