Monday, July 23, 2018

"The Budgetary Effects of Ending Drug Prohibition"

The title of this post is the title of this notable new paper authored by Jeffrey Miron published by the Cato Institute. Here is how it starts:

In the past several years, the national movement to end drug prohibition has accelerated.  Nine states and Washington, DC, have legalized recreational marijuana, with at least three more states (Connecticut, Michigan, and Ohio) likely to vote on legalization by the end of 2018.  Dozens of others have decriminalized the substance or permitted it for medicinal use.  Moreover, amid the nation’s ongoing opioid crisis, some advocates and politicians are calling to decriminalize drugs more broadly and rethink our approach to drug enforcement.

Drug legalization affects various social outcomes.  In the debate over marijuana legalization, academics and the media tend to focus on how legalization affects public health and criminal justice outcomes.  But policymakers and scholars should also consider the fiscal effects of drug liberalization.  Legalization can reduce government spending, which saves resources for other uses, and it generates tax revenue that transfers income from drug producers and consumers to public coffers.

Drawing on the most recent available data, this bulletin estimates the fiscal windfall that would be achieved through drug legalization.  All told, drug legalization could generate up to $106.7 billion in annual budgetary gains for federal, state, and local governments.  Those gains would come from two primary sources: decreases in drug enforcement spending and increases in tax revenue.  This bulletin estimates that state and local governments spend $29 billion on drug prohibition annually, while the federal government spends an additional $18 billion.  Meanwhile, full drug legalization would yield $19 billion in state and local tax revenue and $39 billion in federal tax revenue.

In addition, this bulletin briefly examines the budgetary effects of state marijuana legalizations that have already taken place in Colorado, Oregon, and Washington.  This study finds that, so far, legalization in those states has generated more tax revenue than previously forecast but generated essentially no reductions in criminal justice expenditure. The bulletin offers possible explanations for those finding.

I cannot help but being a bit suspicious of parts of this paper because the very first sentence is a little off:  it is not at all "likely" that Connecticut or Ohio will have marijuana legalization votes in 2018.  Michigan will be having an initiative vote in November, and it is possible that Missouri, North Dakota and Oklahoma voters all could also have a chance to vote for full legalization, too.   This state-vote accounting snafu notwithstanding, the other forms of accounting in this paper still seem to me worth checking out, and the paper also seem to provide a good excuse to link to a few related recent posts from Marijuana Law, Policy and Reform:

July 23, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Friday, July 13, 2018

Some midsummer highlights from Marijuana Law, Policy & Reform

Depending on one's perspective and professional calendar, the middle of July might feel more like the start of summer (for SCOTUS followers) or more like the end of summer (for law profs with classes starting in August). But with my favorite midsummer classic just a few days way, I am inclined to say call around now midsummer.

I am also inclined to note that it has been nearly a month since I did a full round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and so I will head into the weekend by here rounding up some MLP&R highlights (for MLB highlights, the Home Run Derby is Monday):

July 13, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Saturday, July 07, 2018

Judge Jack Weinstein laments overuse of federal supervised release (and especially its revocation for marijuana use)

As regular readers know, US District Judge Jack Weinstein regularly produces interesting and important sentencing opinions, and his latest effort focuses on supervised release as well as marijuana reform. This New York Times article about this opinion, headlined "Brooklyn Judge Vows Not to Send People Back to Prison for Smoking Marijuana," starts with this accounting of the effort:

Noting that marijuana has become increasingly accepted by society, a federal judge in Brooklyn made an unusual promise on Thursday: He pledged he would no longer reimprison people simply for smoking pot.

In a written opinion that was part legal document, part mea culpa, the judge, Jack B. Weinstein, 96, acknowledged that for too long, he had been sending people sentenced to supervised release back into custody for smoking pot even though the drug has been legalized by many states and some cities, like New York, have recently decided not to arrest those who use it. Under supervised release, inmates are freed after finishing their prison time, but are monitored by probation officers.

“Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

The full 42-page opinion in US v. Trotter, No. 15-CR-382 (E.D.N.Y. July 5, 2018) (available here), is an interesting read and important for lot of reasons beyond the connections of criminal justice supervision and marijuana reform.  This first part of the introduction provides a taste for all the full opinion covers:

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release?  Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some.  As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

July 7, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, June 15, 2018

Some state highlights from Marijuana Law, Policy & Reform

It has been nearly two months since I did a full round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, but I have this week highlighted a few of many recent posts on federal marijuana reform developments and on marijuana expungement activities.  Because I am likely to be off line for all of Friday, I will head into the weekend by here doing a round-up of recent state marijuana reform postings from MLP&R (in alphabetical order):

June 15, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Tuesday, June 12, 2018

"Possession's not enough: Expunge all weed convictions"

Legal Marijuana Oregon Measure 91The title of this post is the headline of this recent editorial from the Newark Star-Ledger.  Regular readers likely know I take a shine to this opinion piece because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which call for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.  Here are excerpts from the editorial:

Even as New Jersey is poised to legalize marijuana, the cops are still arresting tens of thousands of people annually, mostly minorities, just for having a little pot. Many can't find work because of the stigma.

Jo Anne Zito was rejected for a job at Godiva chocolates because of a low-level marijuana possession charge, she told lawmakers last week. So, as we contemplate legalizing recreational weed, we need to ask: Does it make sense that people like her still won't be able TO get work at a candy store?

No. We can't legalize marijuana, yet continue to force them to "walk around with a scarlet letter," as Assemblywoman Annette Quijano (D-Union) put it. The answer is expungement. But the current debate is far too limited.

Quijano introduced a bill to allow those caught with a little pot to apply to have their records cleared; advocates argue they shouldn't have to initiate that onerous process, the state should do it automatically. None of this goes far enough.

We need to think big. We need to admit this was a mistake in the first place, and that a lot of decent people were caught up in the dragnet. So, sparing only those who possessed small amounts is really just a first step.

We need to expunge the records of those caught with more than just a little pot. And we need to expunge the records of low-level dealers as well, if a judge approves, as long as they didn't commit more serious crimes like selling to minors, carrying guns, or committing acts of violence.

Aside from cleaning these records, we need to release those currently imprisoned on such charges. Does it make sense to hold thousands of people behind bars for selling weed, while the government allows sales outside the prison walls?...

All states that have legalized pot have only done so for certain amounts. Anyone arrested for possessing more gets a ticket, rather than a criminal charge. Yet if our expungement policy is modeled to match, those previously charged with having any more pot can't get that wiped from their records. They will continue to be barred from employment, even as people who buy heaps of it after legalization are merely ticketed. That needs to be fixed. Expunging high-level dealing charges is likely impossible, for political reasons. But we should at least include intent to sell and lower level distribution and growing charges.

Granted, this is not without risk. A guy who pled down to a marijuana charge from money-laundering, for example, shouldn't get out of doing his time, or a criminal record. But we could include prosecutorial review, as a bill moving through California's legislature would. It requires the state to automatically dismiss any old marijuana charges, yet prosecutors would sift through the higher-level cases and contest them if necessary. California already allows many past pot charges to be dismissed or reduced based on a defendant's petition, although they might still surface if you apply for a government job.

Yes, it's a huge undertaking to expunge all these convictions retroactively, especially if our state does so without requiring a petition. But we derailed hundreds of thousands of lives with needless marijuana prosecutions, and nobody helped those people get jobs or find housing. Now we are saying it never should have happened. So let the state overcome the logistical hurdles, too.

Actually, with a little bit of advanced planning and the right infrastructure, it does not necessarily have to be a "huge undertaking" to expunge past marijuana convictions. Indeed, as noted in this post over at my marijuana blog, "Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program," private players are willing to help in various ways with this effort.

I have blogged a lot about this issue over at my Marijuana Law, Policy and Reform blog, and here is just a sampling of some recent postings:

June 12, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Sunday, June 10, 2018

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

The title of this post is the headline of this new Wall Street Journal article with this subtitle summarizing its contents: "Attorney general vowed to toughen federal enforcement of the drug, but he doesn’t have support from Trump or Congress." Here are excerpts: 

Attorney General Jeff Sessions vowed to use federal law to get tough on marijuana, announcing in January he was ending Obama-era protections for the nascent pot industry in states where it is legal. Six months into his mission, he is largely going it alone.

Mr. Sessions’ own prosecutors have yet to bring federal charges against pot businesses that are abiding by state law. And fellow Republicans in Congress, with support from President Donald Trump, are promoting several bills that would protect or even expand the legal pot trade.

As a result, Mr. Sessions, an unabashed drug warrior, has struggled to make his anti-marijuana agenda a reality, a notable contrast with the success he has had in toughening law-and-order policies in other criminal justice areas.

Marijuana advocates say Mr. Sessions’ approach, in seeking to spur a crackdown on the legal marijuana market, has largely backfired. It has catalyzed bipartisan support for research, they say, and for action to improve the young industry’s access to banks, which have been generally unwilling to accept proceeds from pot sales.

Underlining the pushback, Sen. Cory Gardner, (R., Colo.) on Thursday joined Sen. Elizabeth Warren (D., Mass.) in introducing a bill that essentially would allow states to pass their own marijuana laws without interference from the federal government. Mr. Trump on Friday reiterated his support for Mr. Gardner, saying “I know exactly what he’s doing, we’re looking at it, but I probably will end up supporting that, yes.”...

In an unusual move by a Republican senator against his own party’s attorney general, Mr. Gardner blocked nominees for Justice Department jobs after Mr. Sessions announced he was undoing the Obama administration’s approach. Mr. Gardner stood down after receiving assurances that Mr. Trump would support protections for pot-legal states like Colorado, essentially undermining Mr. Sessions on the issue. “If they’ve voted to have a legal industry, then it would allow them to continue forward without violating any federal law,” Mr. Gardner said of the bill he co-authored with Ms. Warren.

House Republicans are also supporting a number of other marijuana-related measures. Rep. Matt Gaetz (R., Fla.) is pushing his colleagues to allow more marijuana research, which he hopes will pave the way to rescheduling pot—that is, categorizing it with less dangerous drugs on the Drug Enforcement Administration’s list of illicit substances.

Supporters of relaxing marijuana drug laws cheer the recent developments. “It was terrific,” said Don Murphy, director of federal policy for the Marijuana Policy Project, said of Mr. Sessions’ threat to the industry. “It moved this issue to a burner.” Pot foes caution it is too soon to judge the impact of Mr. Sessions’ changes. “It’s not a win for Jeff Sessions, but at the end of the day he still directs the department and could have the DEA close marijuana businesses,” said Kevin Sabet, president and CEO of the antipot group Smart Approaches to Marijuana.

Mr. Sessions’ January marijuana policy left federal prosecutors to decide what resources to devote to marijuana crimes, stirring fear among dispensary owners that raids and arrests were imminent. Instead, many U.S. attorneys continued to use their limited manpower to target unusually brazen marijuana operations that are also illegal under state law, such as sprawling marijuana growers on federal lands or gangs that peddle pot along with other drugs.

Billy Williams, Oregon’s U.S. attorney, for example, is targeting the trafficking of marijuana across state lines, organized crime and businesses that supply pot to minors. This in many ways resembles the policy that prevailed under the Obama administration, which urged states to tightly regulate marijuana and keep it from crossing state lines to avoid federal scrutiny. “I’m not making any blanket statements that we wouldn’t prosecute anyone,” Mr. Williams said. “It’s a case-by-case basis.”

Colorado’s U.S. attorney, Bob Troyer, is aggressively prosecuting drug traffickers who grow pot on federal lands, which is against both state and federal law. But his office hasn’t brought charges against dispensaries that comply with the state’s regulations. “We never would give anyone immunity for violating federal law,” Mr. Troyer said. “As those threats evolve and change, something else could rise to the top priority level.”

All the particulars of these stories should be familiar to regular readers of my Marijuana Law, Policy and Reform blog, and here are just a few of many recent posts providing more of those particulars:

June 10, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

Monday, April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The title of this post is the title of this new paper I have written for a forthcoming issue of the Federal Sentencing Reporter which is now available via SSRN.  Here is the abstract:

States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements.

Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.  Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.   This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.

Cross-posted at Marijuana Law, Policy & Reform.

April 23, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 20, 2018

Because the calendar suggests I should, here is a round-up of some recent posts from Marijuana Law, Policy & Reform

It has been more than two months since I did a round-ups of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and this post will be on the second such round up in this space in 2018.  And it is a bit cliche to do this round-up on 4/20.  But because given all the recent activity in the marijuana law and policy universe, here are just some (of many) recent legal and policy highlights from MLP&R that sentencing fans might find worth checking out:

April 20, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Monday, April 16, 2018

"Marijuana legalization can’t fix mass incarceration" ... but it should help a bit

German Lopez has this short piece on Vox, which carries the headline appearing in quotes in this post title and this subtitle: "A Republican and Democrat pointed to marijuana prohibition to explain mass incarceration. They’re both wrong." Here are key excerpts:

Over the past week, prominent political figures from both sides of the aisle have suggested that the prohibition of marijuana is to blame for mass incarceration.

Former House Speaker John Boehner, a Republican from Ohio, claimed, “When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head.  We have literally filled up our jails with people who are nonviolent and frankly do not belong there.”  Sen. Brian Schatz, a Democrat from Hawaii, tweeted, “More than 2 million in jail, mostly black and brown, many for holding a small amount of marijuana.”

The suggestion, however, is wrong. It is true that a lot of people are arrested each year for marijuana. In 2016, nearly 600,000 people were arrested for simple marijuana possession. These arrests on their own can create huge problems — leading to criminal records that can make it harder to get a job, housing, or financial aid for college.

But these arrests are only a small part of America’s mass incarceration problem. First, most people in jail or prison are not in for drug charges at all. According to the Prison Policy Initiative, around 21 percent of people in jail or prison are in there for a drug crime, including marijuana possession....

How many of the 21 percent of drug offenders are in for marijuana possession? Unfortunately, we don’t have good data for jails, where people are held before they’re convicted of a crime and for shorter sentences. We also don’t have good data for state prisons, where more than 87 percent of US prison inmates are held, based on federal data. But we do know that a minority of state prisoners are in for drugs: In 2015, 3.4 percent of all state prisoners were in for drug possession and 11.7 percent were in for other drug-related crimes. So only a fraction of prisoners are locked up due to drug prohibition in general, much less marijuana prohibition in particular.

We do have some good data for the federal system. According to the US Sentencing Commission, 92 of nearly 20,000 people — fewer than half a percent — sentenced for drug offenses during fiscal year 2017 were locked up due to simple possession of marijuana.

I am glad to see efforts to correct (all-too-common) claims that much of mass incarceration can be attributed to marijuana prohibition, and it is especially galling to see Boehner and Schatz suggest that a significant portion of persons are imprisoned for mere possession of small quantities of marijuana. That is not the reality now, nor has it ever been.

That said, as the arrest data highlight, a whole lot of people get entangled with the criminal justice system because of marijuana prohibition. And trafficking in marijuana (which becomes legal with marijuana legalization) has landed tens of thousands of people in US prison in recent decades. The latest data from the US Sentencing Commission, interestingly, shows that the number of persons federally prosecuted for marijuana trafficking dropped from 6792 in Fiscal Year 2012 to only 3381 in Fiscal Year 2016.  These data suggest to me that the era of marijuana legalization in the states has had a real impact on marijuana prosecutions (and imprisonment) at the federal level.

So while marijuana legalization (nor any other single reform) will alone fix mass incarceration, there is a basis to believe it could help a bit.  (Also, I must add that if former House Speaker John Boehner was sincerely concerned about the number of people in our state and federal penitentiaries, there is a lot more he should be doing besides now advising a marijuana company.)

April 16, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Friday, April 13, 2018

"President Trump has promised a top Senate Republican that he will support congressional efforts to protect states that have legalized marijuana"

The title of this post is the lead sentence of this new Washington Post article headlined "Trump, Gardner strike deal on legalized marijuana, ending standoff over Justice nominees." Here is more from the article:

In January, the Colorado Republican said he would block all DOJ nominations after Attorney General Jeff Sessions issued a memo that heightened the prospect of a federal marijuana crackdown in states that had legalized the substance. Gardner’s home state made recreational marijuana legal in 2014.

In a phone call late Wednesday, Trump told Gardner that despite the DOJ memo, the marijuana industry in Colorado will not be targeted, the senator said in a statement Friday. Satisfied, the first-term senator is now backing down from his nominee blockade.

“Since the campaign, President Trump has consistently supported states’ rights to decide for themselves how best to approach marijuana,” Gardner said Friday. “Late Wednesday, I received a commitment from the President that the Department of Justice’s rescission of the Cole memo will not impact Colorado’s legal marijuana industry.”

He added: “Furthermore, President Trump has assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all. Because of these commitments, I have informed the Administration that I will be lifting my remaining holds on Department of Justice nominees.”...

Trump “does respect Colorado’s right to decide for themselves how to best approach this issue,” White House legislative affairs director Marc Short said in an interview Friday....

A bill has not been finalized, but Gardner has been talking quietly with other senators about a legislative fix that would, in effect, make clear the federal government cannot interfere with states that have voted to legalize marijuana. “My colleagues and I are continuing to work diligently on a bipartisan legislative solution that can pass Congress and head to the President’s desk to deliver on his campaign position,” Gardner said.

In addition to Gardner’s holds, DOJ has faced notable bipartisan pushback from Capitol Hill when it comes to marijuana. Sens. Orrin G. Hatch (R-Utah) and Kamala D. Harris (D-Calif.) wrote to Sessions this week, urging him to back off efforts to curtail medical marijuana research at the Drug Enforcement Administration. The Washington Post reported in August that Sessions’s DOJ was effectively hamstringing the agency’s research efforts by making it harder to grow marijuana.

Separately, former House Speaker John A. Boehner (R-Ohio) announced this week he is joining the board of directors for a cannabis company and engaged in efforts to allow veterans to access marijuana for medicinal use. He has opposed decriminalizing the substance as an elected official.

A few recent related posts from Marijuana Law, Policy and Reform:

April 13, 2018 in Criminal justice in the Trump Administration, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (6)

Wednesday, April 11, 2018

Could former House Speaker John Boehner become the first big drug dealer capitally charged by AG Jeff Sessions?

Boehner-gopThe question in the title of this post is my (tongue-in-cheek?) reaction to this news that former Speaker of the United States House of Representatives John Boehner and former Governor of the State of Massachusetts Bill Weld have joined the Board of Advisors of Acreage Holdings.  This company in this press release calls itself "one of the nation’s largest, multi-state actively-managed cannabis corporations" and on this webpage states that it has "cultivation, processing and dispensing operations across 11 states with plans to expand." 

What this really means, legally speaking, is astutely explained in this tweet by LawProf Alex Kreit: "Oh look, here’s the former speaker of the house publicly announcing that he’s joined a conspiracy to manufacture and distribute a schedule I controlled substance and commit federal drug crimes on an ongoing basis."  But, critically, Boehner is not merely announcing that his is not part of a massive drug conspiracy, he is also perhaps putting himself in position to be subject to the new push by Attorney General Jeff Sessions, discussed here, to "strongly encourage federal prosecutors to use" a federal statute that allows for pursuing the death penalty under 18 U.S.C. § 3591(b)(1) for persons guilty of "dealing in extremely large quantities of drugs." 

Of course, as Christopher Ingraham explained in this Washington Post piece a few weeks ago, a whole lot of marijuana is required to make one eligible for the death penalty under federal law: "there is a federal capital punishment on the books for large quantities of marijuana — a substance with no known lethal dose that is legal for recreational use in nine states plus the District. The threshold is huge — 60,000 kilograms, or 60,000 plants, enough to fill several shipping containers."  But, for a company — or should I say major drug conspiracy — like Acreage Holdings, this amount of marijuana may well be a regular part of regular business operations: 

The quantity-based capital punishment provision is of particular concern to state-legal marijuana businesses.  The plant remains illegal under federal law, regardless of what state laws say.  Aaron Smith, executive director of the National Cannabis Industry Association, a trade group, said in an email that “there are many state-licensed cannabis businesses cultivating 60,000 plants or more.”

Needless to say, I am not expecting John Boehner or Bill Weld to be charged with a federal capital crime or any crime anytime soon.  But I am expecting folks who read this post to better understand why existing federal marijuana prohibition laws garner so little respect and why I think anyone seriously committed to the rule of law ought to be advocating for at least some kind of federal reforms regardless of their particular policy views on particular state marijuana reforms.

April 11, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (4)

Tuesday, February 13, 2018

Marti Gras highlights from Marijuana Law, Policy & Reform

Though I have blogged here a bit about AG Jeff Sessions rescinding the Cole Memo and related policies, I have not done yet done in 2018 any round-ups of posts of note from the blogging I now do over at  Marijuana Law, Policy & Reform.  So, here are just some (of many) legal and policy highlights from MLP&R that sentencing fans might find worth checking out:

February 13, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Tuesday, January 23, 2018

Lots of notable arrest data in Drug Policy Alliance report on marijuana legalization states

Status-report-coverThe reform advocacy organization Drug Policy Alliance has released today this big new data-dense report titled "From Prohibition to Progress: A Status Report on Marijuana Legalization; What We Know About Marijuana Legalization in Eight States and Washington, D.C."   I have already blogged about this report in general terms over at Marijuana Law, Policy & Reform, but I suspect sentencing reform fans might find interesting what this report says about marijuana arrest rates and related criminal justice issues. 

Particularly interesting for criminal justice fans, especially those interested in or concerned about low-level offense enforcement, are the DPA report's detailed arrest data for every marijuana legalization state in the Appendix.  Here is a portion of how the DPA report discusses these data:  

Arrests in all legal marijuana states and Washington, D.C. for the possession, cultivation and distribution of marijuana have plummeted since voters legalized the adult use of marijuana, saving those jurisdictions hundreds of millions of dollars and preventing the criminalization of thousands of people.

Across legal marijuana states and Washington, D.C. the number of arrests for marijuana law violations has declined dramatically (as shown in Chart 2). In Alaska, the number of marijuana arrests for possession and sales/manufacturing declined by 93 percent from 2013 to 2015, from 845 to 60 (see Appendix C). In Colorado, marijuana arrests declined by 49 percent from 2012 to 2013 (12,894 to 6,502). The number of marijuana arrests increased by 7 percent in in 2014 (7,004), yet remained 46 percent lower than in 2012 (see Appendix E). The total number of marijuana‐related court filings in Colorado declined by 81 percent between 2012 and 2015 (10,340 to 1,954), and marijuana possession charges dropped 88 percent (9,130 to 1,068).

In Oregon, the number of marijuana arrests declined by 96 percent from 2013 to 2016 (6,996 to 255) (see Appendix H). The total number of low-level marijuana court filings in Washington fell by 98 percent between 2011 and 2015 (6,879 to 120) (see Appendix I). Marijuana possession convictions in Washington decreased by 76 percent from 2011 to 2015 (7,303 to 1,723). In Washington, D.C., marijuana arrests decreased 76 percent from 2013 to 2016 (3,450 to 840), with possession arrests falling by 98.6 percent, from 2,549 in 2013 to 35 in 2016....

It is widely acknowledged that racial disparities exist in the enforcement of marijuana laws in this country – Black and Latinx people are more likely to be arrested for marijuana law violations than White people, despite similar rates of use and sales across racial groups. Marijuana legalization has dramatically reduced the number of Black and Latinx people arrested for marijuana-related conduct, yet racial disparities persist. Initial data show that while legalization substantially reduced the total number of Black and Latinx people arrested for marijuana offenses, it did not eliminate the forces that contributed to the disparity in the first place, such as the overpolicing of low-income neighborhoods, racial profiling, and other racially motivated police practices.

In Colorado, for example, White people benefitted most from the declines in marijuana arrests, which decreased by 51 percent, compared to 33 percent for Latinx people, and 25 percent for Black people between 2012 and 2014. The marijuana arrest rate for Black people (348 per 100,000) in Colorado was nearly triple that of White people (123 per 100,000) in 2014. The post-legalization arrest rate for Black individuals in Washington is reported to be double the arrest rate for other races and ethnicities. In Alaska, both Black and White people experienced dramatic declines in marijuana arrests between 2013 and 2015, 95 and 92 percent respectively, yet disparities remain (see Chart 17 below).  Of the 17 marijuana arrests in Alaska in 2016, 29 percent were of Black people (a racial group that comprises only 4 percent of the state’s population). Alaska’s marijuana arrest rate for Black people (17.7 per 100,000) is ten times greater than that of White people (1.8 per 100,000). A similar pattern has emerged in Washington, D.C....

In several states, marijuana legalization for adult use has had the unintended consequence of reducing historically high numbers of youth (under 18 years of age) and young adults (between 18 and 20 years old) stopped and arrested for marijuana offenses. However, these reductions are inconsistent from state-to-state and, in some circumstances, youth now comprise a growing number of people charged with marijuana offenses.

Between 2012 and 2015, marijuana court filings in Colorado fell 86 percent for adults 21 years of age and older, and they declined by 69 percent for youth under 18 years of age and 78 percent for young adults 18-to-20 years old.190 Arrests followed a similar trend in the state between 2012 and 2014 wherein the marijuana offense arrest rate for adults 21 and older decreased by 79 percent and young adults 18-to-20 years old experienced a 34 percent decrease in marijuana arrest rates.191 At the same time, the number of youth under 18 years of age cited for marijuana offenses increased by five percent, which amounts to a one percent increase in the rate per 100,000.192

In Oregon, marijuana arrest rates declined by 92 percent between 2013 and 2015 for adults 18 years of age and older, compared to 80 percent for youth under 18 years of age (See Chart 21). In 2016, the marijuana arrest rate for Oregon youth (19.1 per 100,000) was nearly 7 times the adult rate (2.8 per 100,000).193 Similarly, in Washington, marijuana possession convictions declined by 99.1 percent for adults 18 years of age and older and 56 percent for youth under 18 years of age between 2012 and 2015. In 2015, 98 percent of all marijuana possession convictions in Washington (1,691 of 1,723) were of youth.

January 23, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Thursday, January 04, 2018

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

Confirming morning reports, today Attorney General Jeff Sessions issued this new one-page memo to all US Attorneys on the topic of "Marijuana Enforcement." The memo rescinds the Cole and Ogden and related Obama-era enforcement memos (calling them "unnecessary"), and does so without announcing any formal or even informal new policy while saying DOJ's well-established general policies and principles for all federal prosecutions should govern.

Notably, this press release issued with the new Sessions marijuana memo provides some of thematic justifications for his decision:

The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents....

In the memorandum, Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities. This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," said Attorney General Jeff Sessions. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."

Interestingly, this new AP article from Colorado, headlined "U.S. Attorney for Colorado: Status quo on marijuana enforcement," suggests local control could mean little or no change in some regions:

The U.S. Attorney for the District of Colorado said Thursday there will be no immediate changes in marijuana enforcement after Attorney General Jeff Sessions rescinded a policy that paved the way for legalized pot to flourish in states across the country.

“Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions,” U.S. Attorney Bob Troyer said.

“The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state.

“We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”

It will be interesting to see whether a host of other US Attorneys will explain, in general or in detail, how they play to operationalize the "trust and local control" that AG Sessions says he has now given them.

Related posts from here and MLP&R:

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3)

How will local US Attorney's likely respond to new marijuana enforcement guidance coming from AG Jeff Sessions?

The question in the title of this post is prompted by this morning's big federal criminal justice news reported here by AP (and also covered here at Marijuana Law, Policy & Reform):

Attorney General Jeff Sessions is rescinding the Obama-era policy that had paved the way for legalized marijuana to flourish in states across the country, two people with knowledge of the decision told The Associated Press.  Sessions will instead let federal prosecutors where pot is legal decide how aggressively to enforce federal marijuana law, the people said. The people familiar with the plan spoke on condition of anonymity because they were not authorized to discuss it before an announcement expected Thursday....

The move by President Donald Trump’s attorney general likely will add to confusion about whether it’s OK to grow, buy or use marijuana in states where pot is legal, since long-standing federal law prohibits it.  It comes days after pot shops opened in California, launching what is expected to become the world’s largest market for legal recreational marijuana and as polls show a solid majority of Americans believe the drug should be legal.

While Sessions has been carrying out a Justice Department agenda that follows Trump’s top priorities on such issues as immigration and opioids, the changes to pot policy reflect his own concerns.  Trump’s personal views on marijuana remain largely unknown.

Sessions, who has assailed marijuana as comparable to heroin and has blamed it for spikes in violence, had been expected to ramp up enforcement.  Pot advocates argue that legalizing the drug eliminates the need for a black market and would likely reduce violence, since criminals would no longer control the marijuana trade....

Sessions’ policy will let U.S. attorneys across the country decide what kinds of federal resources to devote to marijuana enforcement based on what they see as priorities in their districts, the people familiar with the decision said.

Sessions and some law enforcement officials in states such as Colorado blame legalization for a number of problems, including drug traffickers that have taken advantage of lax marijuana laws to hide in plain sight, illegally growing and shipping the drug across state lines, where it can sell for much more. The decision was a win for pot opponents who had been urging Sessions to take action....

The change also reflects yet another way in which Sessions, who served as a federal prosecutor at the height of the drug war in Mobile, Alabama, has reversed Obama-era criminal justice policies that aimed to ease overcrowding in federal prisons and contributed to a rethinking of how drug criminals were prosecuted and sentenced.  While his Democratic predecessor Eric Holder told federal prosecutors to avoid seeking long mandatory minimum sentences when charging certain lower level drug offenders, for example, Sessions issued an order demanding the opposite, telling them to pursue the most serious charges possible against most suspects.

I want to see exactly what new guidance and statements will come from the Department of Justice and Attorney General Sessions before opining on what this all likely means and portends for federal criminal enforcement and sentencing.  But the question that serves as the title of this post strikes me as the really critical one concerning what comes next. I am inclined to guess that a few local US Attorneys we eager to be free of restrictions created by the 2013 Cole Memo, but that many others have been happy to have a reason not to be to focused on state-legal marijuana business activity. How the implement the new instructions from their boss will be extremely interesting and important for federal marijuana policy, politics and practices in the weeks and months ahead.

Related post from MLP&R:

UPDATEA helpful reader highlighted to me that this news comes on the heels of the announcement yesterday, as detailed in this press release, that "Attorney General Jeff Sessions [Wednesday] announced the appointment of 17 federal prosecutors as Interim United States Attorneys pursuant to 28 U.S.C. § 546."

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

Sunday, December 17, 2017

A light dusting of holiday season highlights from Marijuana Law, Policy & Reform

It has been almost two months since I have done a round-up of posts of note from all the blogging I now do over at  Marijuana Law, Policy & Reform.  Here are just some (of many) legal and policy highlights from just the last few weeks at MLP&R that sentencing fans might find worth checking out:

December 17, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Sunday, December 03, 2017

SCOTUS with a set of intriguing big and small cases as it winds down 2017 oral arguments

This coming week, the Supreme Court has its last set of oral arguments before the end of the calendar year.  The case sure to get most of the mainstream press attention is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, with wedding cakes, religious liberty, same-sex marriage and free expression in the discourse. 

The three cases I will be watching most closely in the week ahead involve limits on federal preemption powers (Christie v. National Collegiate Athletic Association), attorneys fees in prisoner suits (Murphy v. Smith) and tax law obstruction requirements (Marinello v. United States).  The folks at SCOTUSblog have their always helpful argument previews posted for these cases, and here are links to these previews:

Christine v. NCAA:  Argument preview: The 10th Amendment, anti-commandeering and sports betting 

Murphy v. Smith:  Argument preview: Who should pay attorneys who win on behalf of prisoners? 

Marinello v. United States Argument preview: What limits tax law obstruction-of-justice charges? 

The federalism case is obviously the most consequential of this bunch and for many areas of law.  I helped a bit with this amicus brief discussing some of the potential criminal justice implications of these issues raised in Christie v. NCAA, and I will be quite interested to see whether and how the Justices during oral argument frame the discussion of these issues.

December 3, 2017 in Marijuana Legalization in the States, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (12)

Wednesday, November 01, 2017

Very excited for (not-so) new endeavor at OSU Moritz College of Law with creation of new Drug Enforcement and Policy Center (DEPC)

Images (1)Regular readers know that I often write about a range of drug enforcement and policy issues in this space and elsewhere, so I doubt anyone will be too surprised to read about this exciting new chapter for my work in this arena via this Ohio State University press release:

The Ohio State University Moritz College of Law announced today that it will establish the Drug Enforcement and Policy Center (DEPC) with funding provided by a $4.5 million gift from the Charles Koch Foundation.

The DEPC will support and promote interdisciplinary research, scholarship, education, community outreach and public engagement on the societal impacts surrounding legal reforms that prohibit or regulate the use and distribution of traditionally illicit drugs. Robert J. Watkins/Procter & Gamble Professor of Law Douglas A. Berman will lead the center, which will draw on institutional expertise from the Moritz College of Law, John Glenn College of Public Affairs, College of Social Work and across the university to examine the impact of modern drug laws, policies and enforcement on personal freedoms.

“The Drug Enforcement and Policy Center will serve as an objective, reputable voice in the national conversation relating to drug laws and enforcement,” said Moritz College of Law Dean Alan C. Michaels. “Doug is the perfect person to lead this interdisciplinary endeavor as we build on our strengths at the law school -- and comprehensively across Ohio State -- with research and outreach activities that will provide critical evidence to help inform policy decisions at the local, state and national levels.”

The DEPC will foster collaboration among Ohio State’s nationally recognized faculty in the areas of criminal law, public affairs, legislative reform, community well-being, economic development and social justice to explore how the “war on drugs” and other drug enforcement policies have affected Americans over the past half-century and possibilities for reform and improvement. It will also serve as an independent and reliable source for researchers, policymakers, the media and others interested in objective information about drug enforcement and reform, including rigorous examination of ongoing efforts by many states to replace blanket marijuana prohibition with various legalization and regulatory systems and rules.

“I am honored to serve as the first executive director of the Drug Enforcement and Policy Center as we begin important work across a breadth of critical topics at a time when leaders of all political beliefs are looking for reliable and objective evidence concerning the impact of modern drug policies and practices,” Berman said.

Cross-posted at Marijuana Law, Policy and Reform

November 1, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (4)

Sunday, October 29, 2017

Just a smattering of Fall highlights from Marijuana Law, Policy & Reform

It has been quite some time since I have done a round-up of posts of note from all the blogging I now do over at Marijuana Law, Policy & Reform.  Here are just some (of many) legal and policy highlights from the last few months at MLP&R that sentencing fans might find worth checking out:

October 29, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Sunday, September 03, 2017

A long-weekend review of some marijuana reform news and notes

A long weekend seems to provide a good excuse to review some recent posts of note from Marijuana Law, Policy & Reform. So here goes:

September 3, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (3)

Sunday, August 20, 2017

A late-summer review of some marijuana reform news and notes

In this post about a month ago, I set out a midsummer review of posts from Marijuana Law, Policy & Reform.  A month later, I figure it is a good time to provide a late-summer review via this abridged set of links to some MLP&R postings: 

August 20, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2)

Monday, August 14, 2017

Notable application of DOJ spending restriction to halt federal sentencing of convicted marijuana offenders

This new Los Angeles Times article, provocatively headlined "The feds seized guns, gold and 320 pot plants. So why did a judge rule they can't pursue marijuana charges?," reports on a notable federal District Judge ruling from last week.  Here are the basics:

When agents from the Drug Enforcement Administration raided a remote farm in Humboldt County five years ago, they found plenty to incriminate the owners, Anthony Pisarski and Sonny Moore. More than 300 marijuana plants were growing in a pair of greenhouses. Agents found guns in a house on the sprawling property and about $225,000 in cash, much of it bundled in vacuum-sealed pouches, hidden in a garage and some pickup trucks. Later searches uncovered another large stash of cash, along with bars of gold and silver.

Pisarski and Moore ultimately pleaded guilty to a federal charge of conspiring to manufacture and sell marijuana.

But in a ruling believed to be the first of its kind, a judge last week put a stop to the case before the men were sentenced to prison. The judge found he had no choice but to call off prosecutors in light of an unusual budget rule in Congress that forbids federal law enforcement from interfering with states where medical marijuana is legal.

The decision by U.S. District Judge Richard Seeborg in San Francisco illustrates for the first time what could be a serious legal hurdle if U.S. Atty. Gen. Jeff Sessions, a fierce marijuana opponent, decides to crack down on medical marijuana, which remains illegal under federal law. While it remains to be seen how many other marijuana cases will be closed down like the one in San Francisco, supporters of states’ authority to legalize pot hailed the decision and said they hoped it served as a check on Sessions.

“This is a signal that hopefully will go totally across the country — that federal prosecutors should stop wasting their time and start focusing on real criminals,” U.S. Rep. Dana Rohrabacher (R-Costa Mesa), who has led a legislative campaign to rein in the Justice Department on medical marijuana cases, said of the judge’s order.  “My conservative friends like Jeff [Sessions] need to look themselves in the mirror and say, ‘We don’t like these people smoking marijuana, but they do have a right to do it because it’s their lives, not the government’s.’ ”

The ruling hinged on a short amendment written by Rohrabacher and then-U.S. Rep. Sam Farr (D-Carmel), who recently retired, to an appropriations bill in late 2014 that authorized government spending for the upcoming year.  Though brief, the amendment was meant to have a significant effect: It forbade the Department of Justice from using funds in a way that obstructed a state “from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Congress has renewed the prohibition each year since.

Until now, U.S. district judges had rejected attempts by defendants to argue that the amendment applied to their cases.  In a case in Fresno involving a man convicted of illegally operating a marijuana cooperative, for example, a judge found the man had violated California’s medical marijuana law by selling marijuana for profit and therefore was fair game for federal prosecution....

For Pisarski and Moore, the budget amendment offered a last-minute lifeline.  The amendment was added when the pair were only days away from being sentenced. Prosecutors were asking the judge to send the men to prison for nearly three years.  The pair owned 242 remote acres of property that included a house, a warehouse and two greenhouses where agents discovered 320 growing marijuana plants, according to court records filed by the U.S. attorney’s office . Federal agents found a loaded firearm in both of their bedrooms.  Among the evidence seized was $189,000 in cash that had been welded inside the lining of a trailer.

Pisarski’s attorney, Ronald Richards, made an emergency request to postpone the sentencing in order to see if the amendment would be signed into law.  The judge agreed, and when the spending rule, which passed with broad bipartisan support, became law, Richards said he sent emails to public defenders and other defense attorneys across the country to alert them to the new legal avenue the amendment opened in marijuana cases....

Justice Department officials, however, balked at such an expansive interpretation of the amendment. They acknowledged the spending ban prohibited them from meddling in the affairs of state officials but did not accept that it prevented them from going after producers and sellers like Pisarski and Moore. Richards and Moore’s attorney sought to push back the sentencing over and over as the legal landscape on marijuana cases continued to shift.

Last year, the 9th Circuit Court of Appeals ruled that defendants in California and other states in the court’s jurisdiction with medical marijuana laws were entitled to a hearing to determine whether they had been in compliance with those state laws. If defendants could demonstrate that they had abided by state rules, prosecutors were to be blocked from pursuing federal drug charges, the court said.

Last month, Seeborg held a hearing for Pisarski and Moore. Their attorneys argued the marijuana plants the men grew were earmarked for two nonprofit collectives that distributed it to its members in line with California regulations. In a court filing, Pisarski told the judge he needed guns at the house to protect himself against “mountain lions, pigs with big teeth and bears” when he was outside at night. The government countered that the men had not proved that all the members of the collective were legitimate and that the guns, cash and gold indicated the men planned to sell the pot for profit.

On Tuesday, Seeborg sided with Pisarski and Moore, saying the men were under no burden to verify that members of the collectives were qualified to belong. He acknowledged that the money and weapons could be signs of a criminal operation, but said they were “equally consistent with the operation of a rural, cash-intensive enterprise.” In his ruling, Seeborg echoed the 9th Circuit when he emphasized his decision was valid only as long as Congress continues to renew the spending restrictions on the Justice Department.

Having admitted their guilt but not been sentenced, Pisarski and Moore find themselves in an odd legal limbo. Prosecutors in their case did not respond to requests for comment, leaving it unknown whether the U.S. attorney in the Northern District of California will ask for the case to be dismissed or try to wait to see if Congress does an about-face.

I cannot yet seem to find a copy of Judge Seeborg's notable ruling anywhere on-line as of this writing. I will be sure to post it if I can get a copy/link sent my way.

UPDATE:  A helpful reader sent me a copy of Judge Seeborg's 10-page ruling in US v. Pisarski, and it can be downloaded via this link:

  Download Seeborg spending rider ruling

August 14, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (10)

Tuesday, July 25, 2017

Shouldn't latest lawsuit challenging federal marijuana prohibition include an Eighth Amendment claim?

The question in the title of this post is my (sentencing-addled?) reaction to seeing the 89-page complaint filed yesterday on behalf of a number of notable plaintiffs in federal district court. The full complaint, which is available at this link, is summarized by Keith Stroup, legal counsel for the advocacy group NORML, in this new posting.  Here is part of that summary: 

Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.

Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution....

In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution. Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.

Like every self-respecting law professor, I love novel constitutional claims -- they are certainly "good for business."  Consequently, I am intrigued and bemused by the effort to bring down the CSA as a violation of the First Amendment and the "Right to Travel."  But, especially because the CSA includes criminal penalties for any and all marijuana use, even if that use is recommended by a doctor for a serious medical condition, I have long thought there could be a viable Eighth Amendment claim that possible federal prosecution for some marijuana activity threatens a form of "cruel and unusual punishment."

A big new lawsuit attacking the CSA on various grounds on behalf of medical marijuana patients would now seem to present good new opportunity to bring a big new Eighth Amendment claim.  After a lot of recent initiative and legislative reforms, some kind of medical marijuana reform is the law in roughly 90% of US jurisdictions (details here).  And the Supreme Court's Eighth Amendment jurisprudence always talks up "evolving standards," and it often stresses the import of "objective indicia of society’s standards, as expressed in legislative enactments and state practice" to evidence a "national consensus" against a particular type of punishment.  It thus strikes me that there is now an especially strong argument that there is now an especially strong national consensus in the US against criminally punishing anyone for using marijuana for a legitimate medical reason.

But perhaps I am missing something when I think about this issue in Eighth Amendment terms, and perhaps a reader can help me identify a possible good reason for this new lawsuit to be missing an Eighth Amendment argument.

July 25, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (8)

Sunday, July 16, 2017

A midsummer review of the basics of state and federal marijuana reforms

Today's New York Times has this article providing a basic overview of state and federal marijuana reform discourse circa summer 2017. The article is headlined "States Keep Saying Yes to Marijuana Use. Now Comes the Federal No."  Here are excerpts:

In a national vote widely viewed as a victory for conservatives, last year’s elections also yielded a win for liberals in eight states that legalized marijuana for medical or recreational use. But the growing industry is facing a federal crackdown under Attorney General Jeff Sessions, who has compared cannabis to heroin.

A task force Mr. Sessions appointed to, in part, review links between violent crimes and marijuana is scheduled to release its findings by the end of the month. But he has already asked Senate leaders to roll back rules that block the Justice Department from bypassing state laws to enforce a federal ban on medical marijuana.

That has pitted the attorney general against members of Congress across the political spectrum — from Senator Rand Paul, Republican of Kentucky, to Senator Cory Booker, Democrat of New Jersey — who are determined to defend states’ rights and provide some certainty for the multibillion-dollar pot industry....

Around one-fifth of Americans now live in states where marijuana is legal for adult use, according to the Brookings Institution, and an estimated 200 million live in places where medicinal marijuana is legal.  Cannabis retailing has moved from street corners to state-of-the-art dispensaries and stores, with California entrepreneurs producing rose gold vaporizers and businesses in Colorado selling infused drinks.

Mr. Sessions is backed by a minority of Americans who view cannabis as a “gateway” drug that drives social problems, like the recent rise in opioid addiction.  “We love Jeff Sessions’s position on marijuana because he is thinking about it clearly,” said Scott Chipman, Southern California chairman for Citizens Against Legalizing Marijuana. He dismissed the idea of recreational drug use. “‘Recreational’ is a bike ride, a swim, going to the beach,” he said. “Using a drug to put your brain in an altered state is not recreation. That is self-destructive behavior and escapism.”...

Lawmakers who support legalizing marijuana contend that it leads to greater regulation, curbs the black market and stops money laundering.  They point to studies showing that the war on drugs, which began under President Richard M. Nixon, had disastrous impacts on national incarceration rates and racial divides....

Consumers spent $5.9 billion on legal cannabis in the United States last year, according to the Arcview Group, which studies and invests in the industry. That figure is expected to reach $19 billion by 2021....

But marijuana businesses are bracing for a possible clampdown. “People that were sort of on the fence — a family office, a high-net-worth individual thinking of privately financing a licensed opportunity — it has swayed them to go the other way and think: not just yet,” said Randy Maslow, a founder of iAnthus Capital Holdings. The public company raises money in Canada, where Prime Minister Justin Trudeau campaigned on a promise to legalize recreational use of marijuana.

Representative Earl Blumenauer, Democrat of Oregon and a co-chairman of the Congressional Cannabis Caucus, is urging marijuana businesses not to be “unduly concerned.”

“We have watched where the politicians have consistently failed to be able to fashion rational policy and show a little backbone,” he said. “This issue has been driven by the people.”

Though this Times article does not cover any new or notable marijuana reform ground, it provides an excuse for me to do a midsummer review of some recent posts from Marijuana Law, Policy & Reform.  Here is an abridged set of links to some summer postings: 

July 16, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (3)

Sunday, June 04, 2017

Some recent highlights from Marijuana Law, Policy & Reform

I has been some time since I have done a round-up of posts of note from blogging over at Marijuana Law, Policy & Reform.  So:

June 4, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Tuesday, May 23, 2017

Tales of marijuana reform as sentencing reform from California after Prop 64

This recent AP article, headlined "California’s legal pot law helps reduce, erase convictions," serves as a reminder and reinforcement of my tendency to look at marijuana reform as often a kind of sentencing reform. The AP article reports on some interesting case-processing realities in the wake of new provisions in California law created by the state's 2016 marijuana legalization initiative, Prop 64. Here are some details:

Jay Schlauch’s conviction for peddling pot haunted him for nearly a quarter century. The felony prevented him from landing jobs, gave his wife doubts about tying the knot and cast a shadow over his typically sunny outlook on life.

So when an opportunity arose to reduce his record to a misdemeanor under the voter-approved law that legalized recreational marijuana last year, Schlauch wasted little time getting to court. “Why should I be lumped in with, you know, murderers and rapists and people who really deserve to get a felony?” he asked.

This lesser-known provision of Proposition 64 allows some convicts to wipe their rap sheets clean and offers hope for people with past convictions who are seeking work or loans. Past crimes can also pose a deportation threat for some convicts.

It’s hard to say how many people have benefited, but more than 2,500 requests were filed to reduce convictions or sentences, according to partial state figures reported through March. The figures do not yet include data from more than half of counties from the first quarter of the year. While the state does not tally the outcomes of those requests, prosecutors said they have not fought most petitions.

Marijuana legalization advocates, such as the Drug Policy Alliance, have held free legal clinics to help convicts get their records changed. Lawyers who specialize in pot defense have noted a steady flow of interest from new and former clients.

Attorney Bruce Margolin said he got two to three cases a week, many of them decades old.... Since the passage of Proposition 64, he’s gotten convicts out of prison, spared others time behind bars and successfully knocked felonies down to misdemeanors.

But he’s also encountered a lot of confusion about the law that went into effect immediately in November. “They were totally unprepared,” he said of judges and prosecutors in courts he’s appeared in throughout the state. “It’s amazing. You would have thought they should have had seminars to get them up to speed so we don’t have to go through the process of arguing things that are obvious, but we’re still getting that.”

That has not been the case in San Diego, where prosecutors watched polls trending in favor of marijuana legalization and moved proactively to prevent chaos, said Rachel Solov, chief of the collaborative courts division of the district attorney’s office. They learned lessons from the 2014 passage of Proposition 47, which reduced several nonviolent felonies to misdemeanors.

Prosecutors in the county researched which convicts serving time or probation were eligible for sentence reductions and notified the public defender’s office so they could quickly get into court. Many were freed immediately, Solov said. “Whether we agree with the law or not, our job is to enforce it,” Solov said. “It’s the right thing to do. If someone’s in custody and they shouldn’t be in custody anymore, we have an obligation to address that.”

San Diego County led the state with the most number of petitions reported in the first two months after the law was passed. It has reduced sentences or convictions in nearly 400 cases, Solov said.

In Mendocino County, where pot farming is big business and violent crimes are often tied to the crop, District Attorney C. David Eyster said he fights any case not eligible for a reduction, such as applicants with a major felony in their past, a sex offense or two previous convictions for the same crime.

May 23, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, May 18, 2017

Ninth Circuit dodges federal marijuana offender's claim his imprisonment contravenes appropriations rider

As everyone involved in or following marijuana reform knows, Congress in recent years has included in its omnibus appropriations bills a rider that prevents the US Department of Justice (DOJ) from using any funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."  Yesterday, a Ninth Circuit panel considered in Davies v. Benov, No. 15-17256 (9th Cir. May 17, 2017) (available here), a notable contention concerning this rider from a federal prisoner.  Here are the basics from the opinion:

Davies owned and operated medical marijuana dispensaries in Stockton and Sacramento, California, which he contends complied with state and local medical marijuana laws. Davies, however, was charged with violating federal drug laws ... [and] entered into a plea agreement, agreeing to a five-year prison term and pleading guilty to the ten counts filed against him....

Davies filed a habeas corpus petition under 28 U.S.C. § 2241 in the Eastern District of California, contending that the BOP’s use of federal funds to incarcerate individuals, such as himself, who engaged in conduct permitted by state medical marijuana laws violates the appropriations rider.

I recall talking to some lawyers back when Congress first enacted the medical marijuana appropriations rider that, if the text were interpreted very broadly, it could arguably preclude the federal Bureau of Prisons (which is part of DOJ) from spending any of its budget on those incarcerated for state-compliant medical marijuana activities. So I am not shocked that this argument made it to the Ninth Circuit. But, as this concluding passage from Davies highlights, this argument still has not yet been addressed on the merits:

The collateral-attack waiver provision in Davies’s plea agreement bars him from this particular challenge to the BOP’s use of federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. Because of this waiver, we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider. Cf. McIntosh, 833 F.3d at 1177–78 (holding that the appropriations rider prohibits the Department of Justice from using appropriated funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws). “We will enforce a valid waiver even if the claims that could have been made [through a collateral attack] absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462–63 (9th Cir. 2015) (internal quotation marks, alterations, and emphasis omitted).

I would be shocked to see the Ninth Circuit or any other court ultimately interpret the DOJ appropriations rider to require the release of any federal prisoners, but the argument has enough technical textual legitimacy to surely justify its pursuit by persons federally imprisoned for state-legal medical marijuana activity. And, for various updates on state activities, I continue to try to keep up with major legal developments and other notable stories at Marijuana Law, Policy and Reform as evidenced by some of these recent posts:

May 18, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 21, 2017

Heading out to speak at 2017 World Medical Cannabis Conference & Expo

Blogging in this space will be light over the next few days because I am about to travel to Pittsburgh to attend and participate in the 2017 World Medical Cannabis Conference & Expo.   As this schedule details, I am speaking tomorrow afternoon (Saturday) on a panel titled "Higher Education & Its Role in the Industry." Here is how the panel is previewed:

The cannabis industry is set to create more jobs than established industries like manufacturing by 2020.  However, there is still no clear path to getting involved in the industry or clear educational path.  Students need more courses and curriculum that teaches the fundamentals of the industry.  These include all areas of the industry including business, agriculture, research, etc.  This panel will talk about what courses are currently available for students and what still needs to be offered as well as how higher education can translate their findings into commercial services and products the industry can use to advance itself.

This preview post for this even proves a useful and timely excuse to highlight some recent posts from my Marijuana Law, Policy & Reform blog. Here is just a sample of some April postings from that space:

April 21, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences | Permalink | Comments (12)

Tuesday, February 07, 2017

Might marijuana legalization "be inducing a crime drop" in US states?

The question in the title of this post is prompted by this notable new empirical article on SSRN titled "Crime and the Legalization of Recreational Marijuana" and authored by quartet of economists from the University of Bologna.  Here is the abstract:

We provide first-pass evidence that the legalization of the cannabis market across US states may be inducing a crime drop.  Exploiting the recent staggered legalization enacted by the adjacent states of Washington (end of 2012) and Oregon (end of 2014) we find, combining county-level difference-in-differences and spatial regression discontinuity designs, that the legalization of recreational marijuana caused a significant reduction of rapes and thefts on the Washington side of the border in 2013-2014 relative to the Oregon side and relative to the pre-legalization years 2010-2012.  We also find evidence that the legalization increased consumption of marijuana and reduced consumption of other drugs and both ordinary and binge alcohol.

Regular readers will not be surprised that I view the posting of this article as an excuse to provide a round-up of recent posts from my other blog, Marijuana Law, Policy and Reform:

February 7, 2017 in Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (3)

Tuesday, January 24, 2017

Split Colorado Supreme Court concludes federal law precludes state officers from returning marijuana to acquitted defendants

The Colorado Supreme Court yesterday issued an interesting ruling driven by the conflict between the state's marijuana reforms and federal prohibition. (SCOTUS fans might note the majority opinion was authored by Justice Allison Eid, who is on Prez Trump's (not-so-)short list.) Here are parts of how the majority opinion in Colorado v. Crouse, No. 2017 CO 5 (Colo. Jan 23, 2017) (available here), gets started:

The state’s medical marijuana amendment, article XVIII, section 14(2)(e) of the Colorado Constitution, requires law enforcement officers to return medical marijuana seized from an individual later acquitted of a state drug charge. The federal Controlled Substances Act (“CSA”) prohibits the distribution of marijuana, with limited exceptions. 21 U.S.C. §§ 801–971 (2012). The question in this case is whether the return provision of section 14(2)(e) is preempted by the federal CSA....

The CSA does not preempt state law on the same subject matter “unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903 (2012). The return provision requires law enforcement officers to return, or distribute, marijuana. Distribution of marijuana, however, remains unlawful under federal law. Thus, compliance with the return provision necessarily requires law enforcement officers to violate federal law. This constitutes a “positive conflict” between the return provision and the CSA’s distribution prohibition such that “the two cannot consistently stand together.”

Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) of the CSA immunizes only those officers who are “lawfully engaged in the enforcement of any law . . . relating to controlled substances.” 21 U.S.C. § 885(d) (2012) (emphasis added). This court has held that an act is “lawful” only if it complies with both state and federal law. Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 851. The officers here could not be “lawfully engaged” in law enforcement activities given that their conduct would violate federal law.

Here is part of the start of the dissent authored by Justice Gabriel:

Because I believe that the plain language of § 885(d) of the CSA, 21 U.S.C. § 885(d), immunizes federal and state officers from civil and criminal liability in the circumstances at issue here, I perceive no conflict between the CSA and section 14(2)(e) of article XVIII of the Colorado Constitution, nor do I believe that it is impossible to comply with both the CSA and the Colorado Constitution, as the majority implicitly and the People expressly contend.

Though not in any way related to this ruling, I cannot help but take this not-quite-perfect opportunity to share titles and links to some coverage of marijuana reform issues from my other major blog, Marijuana Law, Policy and Reform:

January 24, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (5)

Thursday, January 05, 2017

Marijuana reform and clemency conversations at the state and federal level

Two new lengthy pieces combining news and commentary on the clemency and marijuana fronts further reinforces my view that marijuana reform is a form of sentencing reform.  Here are the extended headlines and links to these two interesting reads:

January 5, 2017 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, January 01, 2017

Any astute thoughts about the sentencing year that was or the year that will be?

A variety of other (mostly non-work) engagements have prevented me from having the time to do any elaborate year-in-review or year-to-come posts about sentencing topics.  That said, as I take my 2016 calendars down and replace them with the 2017 versions, two matters come to mind that implicate both the year that was and the year to come:

1. SCOTUS transition: though representing only one vote, Justice Scalia's voice and impact on sentencing and criminal justice jurisprudence was far larger than his voting record.  The impact and import of his legacy and his absence, along with the coming character of his SCOTUS replacement, cannot be readily overstated.

2. Marijuana reform (but few other big sentencing reforms): with four more states voting for full recreational reform and nearly a dozen others enacting or enhancing medical regimes, in 2016 marijuana reform continued at a remarkable clip while broader drug war and other sentencing reform stalled (at least at the federal level). What the new GOP executive leaders in DC will now do on these fronts is among the most interesting and dynamic and uncertain story to watch in 2017.

As always, I welcome reader throughout on these topics and any others about the year that ended yesterday or the new one getting started today.

January 1, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (5)

Sunday, December 18, 2016

So many states with so many interesting marijuana reform stories ... only partially covered at Marijuana Law, Policy and Reform

Especially since the election, I have found the stories and debates surrounding capital and non-capital sentencing reforms to be filled with even more intrigue and uncertainty than usual.  And yet, even as sentencing law and policy gets even more dynamic, I continue to find legal and policy and practice developments in the marijuana reform space to be on a whole different level.  Part of this reality comes from the fact that marijuana reform right now is such a diverse state-by-state story nationwide, with big new developments occurring literally from corner to corner of the United States.  For example, in this new round-up of notable headlines at my Marijuana Law, Policy and Reform blog, there is news of note from Alaska and California and Florida and Maine (as well as from fly-over states like Ohio and Montana).

Of course, all criminal justice reform stories are ultimately state-by-state stories in the United States.  Still, the fact that we see so much state-level reform an innovation in the teeth of continued federal blanket prohibition seems to me an important reminder of how decentralized power in this great country can be if folks take the time to try to avoid undue obsession with the laws and policy that emerge only from inside the Beltway.  And here are a few more more recent posts from MLP&R further reinforcing this essential story: 

December 18, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3)

Sunday, December 11, 2016

Vermont Gov promising to pardon all marijuana offenses on his way out of office

As reported in this local article from Vermont, "before he leaves office, Gov. Peter Shumlin is planning to pardon people who were convicted of possessing up to one ounce of marijuana." Here are the details:

Vermont removed criminal penalties for small amounts of marijuana possession in 2013. Shumlin said in a statement that pardoning the convictions now is "the right thing to do," and he hopes to review as many applications as possible before he leaves office in the new year. [The official statement is here.]

“Decriminalization was a good first step in updating our outmoded drug laws," Shumlin said. "It makes no sense that minor marijuana convictions should tarnish the lives of Vermonters indefinitely.”

The governor will consider pardons for people who have never been convicted of "violent criminal Vermont convictions or felonies," according to a news release.  The governor's office believes as many as 10,000 people are eligible for pardons, said James Pepper, a policy adviser and director of intergovernmental affairs for Shumlin....

People interested in a pardon for marijuana possession can apply through the governor's website before Dec. 25 [link here]. The website cautions applicants that their applications may be considered public records and that a pardon "will not necessarily erase a conviction or the record of that conviction."

"If you are requesting a pardon because you believe the pardon will have certain legal consequences for you, you should talk to a lawyer," the governor's website states....

A 2015 Vermont law allows people in certain circumstances to expunge criminal records of acts they committed before age 25 that are no longer criminal, including possession of small amounts of marijuana. Shumlin believes Vermont should legalize recreational marijuana. A legalization bill passed the state Senate this year but did not pass the House of Representatives.

This story provides further reinforcement of my long-standing view that marijuana reform = sentencing reform and that everyone interested in sentencing reform should be a supporter of marijuana reform. And, of course, for more on marijuana law, policy and reform, my other blog has been covering these stories:

December 11, 2016 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Friday, December 02, 2016

Reviewing another week of developments and questions from Marijuana Law, Policy & Reform

Absent complaints from readers, I think I am going to return to my habit of closing up my "blogging work-week" in this space by providing a round-up of posts of note from blogging over at Marijuana Law, Policy & Reform.  So:

December 2, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Saturday, November 26, 2016

So many marijuana reform developments and questions, with so many more on 2017 horizon

Though I blogged a bit in this space about marijuana reform right around the election (see here and here), over the last few weeks I have been content to cover this issues just over at Marijuana Law, Policy & Reform.  But this new post about this new article about the thousands of Californians getting sentencing relief thanks to the state's passage of a major marijuana legalization proposition, Prop 64, reminded me that I should be reminding readers about the close links between marijuana reform in particular and sentencing reform in general.  

The first post linked below tells the sentencing reform story, and some other postings from my other blog tell a whole lot of other interesting and dynamic stories about the current state and possible future of marijuana reform in the United States:

November 26, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, November 10, 2016

Did death penalty initiatives make it easier for significant prison reforms to pass in California and Oklahoma?

The sets of death penalty initiatives on state ballots this year received lots of attention, and the pro-death-penalty side received lots of voter support in both "red states" like Nebraska and Oklahoma as well as in the in "blue state" of California.  (And I am very excited, as previewed here, that tomorrow at Northwestern Law I be part of a symposium that will be seeking  to sort out what this means for the future of the death penalty in the US.) But, as Randy Balko notes in this Washington Post piece headlined "Believe it or not, it was a pretty good night for criminal-justice reform," the death penalty outcomes should be looked at in the context of other criminal justice reform measure that also got significant support from voters in both red and blue states. Here are excerpts from his piece with one word highlighted by me for commentary to follow:

The death penalty was on the ballot in three states last night, by way of four separate initiatives. In all of them, the death penalty won.... But it wasn’t just in red states. California voters weighed in on two death penalty initiatives — one to repeal it, and one to speed it up. The former failed, the latter passed.  This is a state that Hillary Clinton won by 28 points. Americans still revere the death penalty....

But there was also a lot of good news last night. Marijuana won in 8 of the 9 states in which it was on the ballot — including outright legalization in California, Massachusetts and Nevada. Those states all went blue in the presidential race, but red states Montana, Florida, Arkansas and North Dakota all legalized medicinal marijuana. The lesson here appears to be that pot has finally transcended the culture wars, but the death penalty hasn’t.  [My other blog, Marijuana Law, Policy and Reform, is where I obsess on this reality.]

There are a couple of other important reform measures that passed.  Ironically, both were in states that strengthened the death penalty.  California voters approved Prop 57, which expands parole (as opposed to prison) and time off for good behavior for nonviolent offenses, and lets judges (instead of prosecutors) determine whether juveniles should be tried in adult courts.  And in Oklahoma, voters approved of a measure to reclassify certain property and drug possession crimes from felonies to misdemeanors.  They also approved a measure that would use the money saved from reclassifying such crimes to fund rehabilitation, mental health treatment and vocational training for inmates. New Mexico voters passed a bail reform measure that, while poorly drafted, at least indicates that there’s an appetite in the electorate for such reforms.

As the question in the title of this post is meant to suggest, I do not think it "ironic"  that the very different states of California and Oklahoma with very different voters acted in the same way here.  Indeed, I think it quite sensible for voters to be eager to, at the same time while voting, express support for tougher sentencing for the very worst criminals (terrible murderers) and for smarter sentencing for the lesser criminals (nonviolent and drug offenders).  I make this point to stress not only that (1) these results make perfect sense to "average" voters at this moment in our national criminal justice discourse, but also that (2) it was practically shrewd for politicians in California and Oklahoma to put prison reforms in front of voters at the same time they were considering death penalty issues.

1. As a matter of political mood, I suspect the "average" voter now is not too troubled by historic problems with the administration of the death penalty, largely because some recent big capital cases involve mass murderer with no concerns about a possible wrongful conviction or terrible defense lawyering.  High-profile capital cases like James Holmes (the Aurora movie theater mass murderer), Dzhokhar Tsarnaev (the Boston Marathon bomber) and Dylann Roof (the Charleston Church mass murderer) have all involved crimes in which guilt seems clear beyond any doubt and in which the defendants have had the benefit of spectacular defense lawyers.

At the same time, while the "average" voter is seemingly not keen on taking the death penalty completely off the table for mass murderers like Holmes, Tsarnaev and Roof, she seems to be growing much more keen on reducing reliance on incarceration for nonviolent and drug offenders.  National discussions of the expense and inefficacy of the drug war and other concerns about modern mass incarceration has, it seems, made prison reform for certain lower-level offenders politically popular even in a red state like Oklahoma.

2. As a matter of practical realities, especially in a state like California in which "tough on crime" prison initiatives have historically garnered vocal support from law enforcement groups and prosecutors and prison unions, I suspect having a death penalty initiative for the "tough-and-tougher" crowd to focus on created a window of opportunity for supporters of prison reforms to dominate the messaging for voters on "lower salience" issues like expanding parole eligibility or reducing some crimes to misdemeanors.  Though I was not in California or Oklahoma to experience their initiative campaigns directly, I know just from reading Crime & Consequences that Kent Schneidegger, a very effective tough-on-crime advocate, was much more focused on Prop 62 and 66 (the capital initiatives in California) than on Prop 57 (the parole initiative that he called "Gov. Brown's Jailbreak Initiative").

November 10, 2016 in Death Penalty Reforms, Marijuana Legalization in the States, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, November 09, 2016

Sentencing reform's (uncertain?) future after huge election wins for Republicans, the death penalty, marijuana reform and state sentencing reforms

It is now official that Republican have retained control of both houses of Congress, and it seems now a near certainty that Donald Trump will soon officially be our nation's President Elect.  What that might mean for the future of federal sentencing reform will be the subject of a lot of future posts.  For now, I just want to wrap up the story of dynamic state ballot initiatives in the states by spotlighting that they showcase a pretty consistent national criminal justice reform message for all local, state and national officials.

1.  The death penalty still has deep and broad support in traditionally conservative states like Nebraska and Oklahoma, and clearly still has majority support even in a deep blue state like California.

2.  Non-capital sentencing reform has deep and broad support in a deep blue states like California and can find majority in a traditionally conservative state like Oklahoma.

3.  Medical marijuana reform has deep and broad support seemingly everywhere after winning this year in Arkansas and Florida and Montana and North Dakota.

4.  Recreational marijuana reform has seemingly significant support in blue states after winning this year in California and Massachusetts and Nevada and probably Maine, but in the red state in Arizona it could not garner a majority this year.

November 9, 2016 in Death Penalty Reforms, Marijuana Legalization in the States, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Fascinating mixed criminal justice initiative results developing in California

Though a little under 40% of all precincts have been reported, the early results on all the criminal justice reform ballot initiatives in California reported here indicate this fascinating mixed bag of criminal justice reform developments:

Proposition 57 reforming "Criminal Sentences & Juvenile Crime Proceedings" is winning 64% to 36%

Proposition 62 "Repeal of Death Penalty" is losing 45% to 55%

Proposition 64 enacting "Marijuana Legalization" is winning 56% to 44%

Proposition 66 providing for "Death Penalty Procedure Time Limits" is winning 51.5% to 48.5%

In other words, the largest state in our Union has voted again against repealing its death penalty and seems to be voting for a competing reform intended to speed up the path of condemned murderers from death row to the execution chamber. At the same time, this state has enacted via initiative yet another significant reform to its non-capital sentencing system that seems likely to further reduce the state's modern heavy reliance on incarceration. And the state with a huge population and a "local" economy that is of truly global significance will now be fully turning away from the criminalization of recreational marijuana use by adults.

November 9, 2016 in Marijuana Legalization in the States, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, November 03, 2016

Notable new analysis of marijuana arrest rates and patterns acorss the nation

This new post at Marijuana.com, under the headline "Marijuana Decrim Doesn’t Stop Discrimination, New Data Shows," appears to be reporting and analyzing some important new data on the impact of marijuana reform on some key criminal justice metrics.  Here are excerpts from the lengthy entry:

Marijuana arrest rates are plummeting as a growing number of far-reaching state policy reforms like legalization and decriminalization are enacted; however, stark racial disparities in cannabis law enforcement remain, a new Marijuana.com analysis of policing data uncovers. The data provided an illuminating follow-up to the 2013 American Civil Liberties Union report which made headlines by showing that, while African Americans and whites use marijuana at roughly equivalent rates, blacks are much more likely to be arrested for it.

Public records requests submitted via MuckRock to all 50 states for data pertaining to marijuana-related arrests show, on average, a significant decrease in possession offenses in the years since the publication of the ACLU report, which was based on 2010 data. But despite the apparent shift in focus away from the enforcement of marijuana possession laws, the racial bias in arrest rates uncovered by the ACLU remains intact.

The new data also revealed that decriminalization measures may have become an unintentional barrier to transparency in marijuana law enforcement. The classification of marijuana as a less serious offense in many states has resulted in a deprioritization of tracking critical information regarding who is stopped, and how often.

Among the key findings of the new Marijuana.com analysis are:

  • In New York, despite significant drops in arrests for misdemeanor possession of marijuana, black people are more than 13 times as likely as white people to be arrested for it.
  • Despite significant drops in overall arrest rates, Florida increased the number of people arrested for marijuana possession since 2010.
  • States with a large racial disparity in arrests – New York, North Carolina and South Carolina – also tend to be the states with higher overall arrest rates.
  • The largest drops in overall arrest rates since 2010 occurred in Nevada, Alaska, Connecticut and New York.

In all, data were received from 25 states; 12 states provided arrest numbers for local and state police — many not filtered by agency — while 13 either separated local and state police data or provided numbers only for state police. The remaining states for which data were not obtained either do not keep track of marijuana offenses as distinct from other drug-related crimes, do not keep track of marijuana offenses on a state level or charged prohibitively high fees for the same data which other states provided for free.....

The data we are able to report here do not tell the whole story of marijuana users’ clash with the law in this age of decriminalization and legalization. Public opinion toward marijuana has shifted dramatically, particularly within the last several years. A few states have legalized possession of small amounts, while others have instead opted to reclassify possession of similar amounts from felonies to misdemeanors or from misdemeanors to civil infractions, to reflect this change in perception.

While this shift has been a laudable victory for advocates pushing for full legalization of recreational use, it has also resulted in increased difficulty in tracking important data. Finding the answer to a relatively simple question, such as, “How many people in this state were caught with marijuana in the year 2014?” has become all the more arduous. Researchers are forced to track down data for misdemeanors and felonies at the state level in addition to approaching individual law enforcement agencies directly for data on civil infractions, hoping they keep track of those numbers at all.

Consequently, the data reported here reflect only the marijuana possession offenses which are reported at the state levels; the number of civil infractions in states which have decriminalized possession are evidenced only by the significant drop in arrest rates (misdemeanors) following such a change in the law....

Taken as a whole, the new numbers obtained by Marijuana.com add to the debate about the effects of both prohibition and the decriminalization policies that advocates have succeeded in enacting in a growing number of jurisdictions, and the data (or in some cases lack thereof) shed light on the difficulty in tracking many of those effects.

I find this report and its data quite interesting, but it is a bit opaque and ultimately further convinces me that one of the first (and non-controversial?) priorities for the new federal administration should be to try to collect and analyze data on modern marijuana enforcement nationwide . Of course, I think a priority for everyone interested in the marijuana reform space must include checking out my other blog where you can find these recent posts on various related topics:

November 3, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (0)

Monday, October 31, 2016

"Defendant in U.S. opioid kickback case claims constitutional right to smoke pot"

The title of this post is the headline of this notable new argument about a notable motion filed in federal district court case. Here are the details:

A U.S. ex-pharmaceutical sales representative accused of paying kickbacks to induce doctors to write prescriptions for an opioid drug is asserting he has a constitutional right to continue smoking marijuana so he can remain clear-headed for his defense.

In a filing Friday, lawyers for Jeffrey Pearlman asked a federal judge for the U.S. District Court in Connecticut to modify his bail conditions so that he can continue using marijuana that was prescribed to him by a New Jersey doctor to help him kick his opioid addiction.  "Forcing him off the medical marijuana and forcing him to return to addictive opioids would impair his Sixth Amendment right to participate fully in his defense and his Fifth (Amendment) right to due process," his attorneys Michael Rosensaft and Scott Resnik of Katten Muchin Rosenman LLP wrote.

The novel request is one of only at least three such attempts in a federal court to permit the use of medical marijuana.  It is possibly the only motion of its kind to assert a Sixth Amendment defense that the failure to permit medical marijuana use could re-trigger an opioid addiction and impede a person's ability to participate in his own defense....

A variety of state laws have legalized marijuana for medicinal use, but federal law still prohibits it. The drug is classified as a Schedule I substance, meaning it is addictive and serves no medical purpose. Many opioids, by contrast, fall under Schedule II, meaning they are addictive, but have medical uses.

Pearlman, a former Insys Therapeutics, was charged criminally in September for allegedly arranging sham speaker programs designed to encourage medical professionals to write prescriptions for a fentanyl spray.  His lawyers say Pearlman became addicted to opioids used to treat severe back and leg pain and the drugs made him "foggy" and unable to think clearly.

After being prescribed marijuana in August, they said, his pain has subsided and he is able to "think more clearly."  Whether the judge will grant Pearlman's request remains to be seen.  Two defendants in other federal courts previously lost their bids to continue using medical marijuana, though the facts and circumstances in those cases were different.

In this case, the U.S. Attorney's Office has not opposed the request.  A spokesman for the office declined to elaborate further.

There are so many drug war ironies baked into this story, I am not sure I know where to start my fuzzy commentary on the highlights of this case. For now, I will be content to note the remarkable fact that the U.S. Attorney's Office's has here not opposed a request by a federal fraud defendant to be able to break federal drug laws while on bail.

October 31, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, October 26, 2016

Famous "war on drugs" voice now voicing support for marijuana reform: any questions?

This new MarketWatch article, headlined "War on drugs spokesman now supports marijuana legalization," gives me an excuse to flag an iconic 1980s public service announcement while reporting on its new symbolic significance:

The voice behind one of the war on drugs’ most iconic ads has cast a vote to legalize marijuana. During the height of the ’80s war on drugs that gave rise to the “Just Say No” campaign, actor John Roselius stared in an antidrug TV ad for the Partnership for a Drug-Free America. The ad featured Roselius frying an egg in a skillet to portray what happens to the brain while using drugs.

Roselius, who is now 72, recently told Colorado-based Rooster Magazine he voted “yes” on California’s Adult Use of Marijuana Act, or Prop 64, which would legalize and regulate the use and sale of the plant to adults. “I’m 100% behind legalizing it, are you kidding? It’s healthier than alcohol,” Roselius told the publication.

And he’s not alone. Just ahead of the Nov. 8 election — in which five states will vote on legalizing the recreational use of marijuana and four will vote on legalizing medical marijuana—a Gallup poll shows that 60% of Americans support legal marijuana use. That’s the highest percentage of support recorded in the 47-year trend, with support rising among all age groups in the past decade.

That follows a separate poll by Pew Research earlier in the month which found 57% of Americans support legalization. “The topline number obviously bodes well for the marijuana measures on state ballots next month,” said Tom Angell of Marijuana Majority, an organization tasked with educating people and fighting for marijuana legalization. “More politicians — presidential candidates included — would do themselves a big favor to take note of the clear trend and then vocally support legislation catering to the growing majority of Americans who support modernizing failed marijuana policies.”

Roselius told Rooster Magazine he’d smoked marijuana in the ’60s, and that when he made the ad, he knew it didn’t fry the brain like an egg.

The war on drugs has been one of the most scrutinized and debated policies to come out of the Reagan era. Drug dealers were cast as violent villains and were blamed for devastating some of America’s cities. Incarceration rates shot higher and disproportionately affected men of color.

The cannabis industry has since fought back against that portrayal, calling for an end to arrests for nonviolent marijuana-related offenses. Roselius’ vote to legalize marijuana in California could help push one of the most important states in the movement to the forefront.

Of course, if you do have question about these matter, my blog Marijuana Law, Policy and Reform has a lot more coverage.  And, with that intro and a good excuse now, here is a review of some recent posts there (many of which are the fine work of my relatively new co-blogger):

October 26, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

Friday, October 21, 2016

New Gallup poll reports notable trends in "tough-on-crime" public polling perspectives

A6rjo7fztki7iz_8fgcxggThis new Gallup item, headlined "Americans' Views Shift on Toughness of Justice System," details the results of its latest annual Gallup poll on on crime and punishment opinions. Here are the highlights:

Americans' views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is "not tough enough" -- down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system's approach as "about right" (35%) or "too tough" (14%).

Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans' views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is "not tough enough." Although considerably higher than in the past, relatively few believe the system is "too tough."

Views of the justice system's toughness vary across racial and political party lines.  The majority of Republicans and Republican-leaning independents say it is "not tough enough" (65%), with most of the rest describing it as "about right" (30%).  Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is "about right" (42%), with the rest dividing about evenly between saying it is "too tough" (22%) or "not tough enough" (29%).

A majority of whites (53%) say the system's handling of crime is "not tough enough," while a third (32%) say it is "about right."  One in 10 whites say the system is "too tough." Nonwhites -- who as a group make up a disproportionate percentage of the U.S. incarcerated population -- are more than twice as likely as whites to say the system is "too tough" (23%).  They are also more likely than whites to say it is "about right" (40%). Meanwhile, 30% of nonwhites say the system's handling of crime is "not tough enough."

Against a backdrop of bipartisan efforts in Congress to reform drug sentencing in 2016, 38% of U.S. adults describe guidelines for sentencing of people convicted of routine drug crimes as "too tough."  A slightly smaller percentage say they are "not tough enough" (34%), while a quarter say they are "about right" (25%).  Fifty percent of Democrats say drug crime sentencing guidelines are "too tough" -- twice as high as the percentage of Republicans (26%) who say the same. Republicans are more likely than Democrats to describe drug crime sentencing as "not tough enough" (47%).

Differences in views between whites and nonwhites are less pronounced on drug crime sentencing guidelines compared with their views of the criminal justice system's handling of crime more generally. Both whites and nonwhites have sizable percentages, ranging from 21% to 39%, of those who describe drug crime sentencing guidelines as "too tough," "not tough enough" or "about right."

Americans' views about the toughness of the criminal justice system have clearly shifted in recent decades, with less than a majority now saying the system is "not tough enough" and more Americans describing it as "about right" or "too tough." Although more than in the past believe the system is overly tough, this view is still held by a relatively small minority. U.S. adults are much more likely, however, to describe drug crime sentencing guidelines as "too tough" compared with their opinions of the system's handling of overall crime, and this is the case among both racial and political party groups.

The folks over at Crime & Consequences have these two notable posts discussing these new Gallup data (though I cannot help but note they did not comment on other recent Gallup polling data reporting record-high majoritarian support for the legalization of marijuana):

October 21, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Thursday, October 13, 2016

New empirical study suggests "recreational cannabis caused a significant reduction of rapes and thefts"

As regular readers surely surmise, I tend to support modern efforts to repeal in part or in whole blanket marijuana prohibitions largely because I am hopeful that modern marijuana reforms will produce more net societal benefits than harms.  Consequently, I often am (too?) quick to take note of reports and studies extolling the benefits of marijuana reforms; but, I also try to make sure I am equally quick to take note of what might be formal or informal biases in any reports and studies extolling the benefits of marijuana reforms.

Against that backdrop, I would be grateful to hear from readers with some empirical chops to help me better assess whether I should be forcefully extolling (or forcefully questioning) this notable new empirical study authored by a group of economists (and available via SSRN) titled "Recreational Cannabis Reduces Rapes and Thefts: Evidence from a Quasi-Experiment." Here is the abstract that, based on the line I have highlighted, seems almost too good to be true for supporters of significant marijuana reform:

An argument against the legalization of the cannabis market is that such a policy would increase crime.  Exploiting the recent staggered legalization enacted by the states of Washington (end of 2012) and Oregon (end of 2014) we show, combining difference-in-differences and spatial regression discontinuity designs, that recreational cannabis caused a significant reduction of rapes and thefts on the Washington side of the border in 2013-2014 relative to the Oregon side and relative to the pre-legalization years 2010-2012.

A few recent and past posts from Marijuana Law, Policy and Reform exploring links between marijuana reform and non-drug crime:

October 13, 2016 in Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (1)

Friday, October 07, 2016

Am I crazy to actually be expecting a marijuana (or drug war/opioid) question during Sunday's town-hall Prez debate?

Especially because neither marijuana reform nor the opioid epidemic came up during the the first Prez debate (or the VP debate), I am actually anticipating that these topics will be raised in some way during the town-hall debate scheduled for this coming Sunday.  As regular readers of my Marijuana Law, Policy and Reform blog might guess, I think the very best question to ask the candidates could link these topics.  Specifically, here is the question I would love to see asked on Sunday:

"Given the evidence emerging from a number of early studies that opioid use and abuse has generally been reduced in those states that have reformed their marijuana laws, will you commit your Administration in its first 100 days to move federal law away from blanket marijuana prohibition?"

I welcome readers to suggest their own questions on these topics in the comments (and recent posts at my other blog provides plenty of ideas for all sorts of possible questions):

October 7, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3)

Monday, September 26, 2016

"Ask the Candidates if They Are Ready to Legalize Marijuana — and, if Not, Why?"

The title of this post is the headline of this recent Nation piece, from which comes these excerpts:

Presidential debates, as organized by the lamentable Commission on Presidential Debates, are deliberately boring. Most of the questions asked of the candidates are little more than invitations to repeat their most shopworn talking points. And, worse yet, there has been a recent trend toward asking candidates to critique their opponents — literally asking for more of the talking-head punditry that extinguishes whatever enthusiasm might be generated by a clash of ideas.

What to do?  Why not ask Hillary Clinton and Donald Trump some pointed questions about legalizing marijuana? Arizona will be voting this fall on whether to legalize the possession and consumption of marijuana by persons who are 21 years of age or older. If passed, Proposition 205 (The Regulation and Taxation of Marijuana Act) would establish a Department of Marijuana Licenses and Control to regulate the cultivation, manufacturing, testing, transportation, and sale of marijuana....

While manufacturers of synthetic painkillers and other corporate interests oppose the measure, it has earned support from educators, physicians, public-health advocates and supporters of criminal-justice reform. Among the statements filed in support of a “yes” vote with the Arizona secretary of state is a reflection from a pair of retired Drug Enforcement Agency agents, Michael Capasso and Finn Selander....

So how about these two questions for Clinton and Trump:

1. Both of you have campaigned in Arizona, where polls suggest the presidential race is close. On the same November 8 ballot where voters will be asked to choose between your candidacies, they will also be asked whether they would like to legalize marijuana and establish a strictly regulated system for its cultivation, manufacturing, testing, transportation and sale. By this point, both of you should be well aware of the arguments for and against legalizing marijuana. If you were voting in Arizona, how would you cast your ballots: “yes” for legalization or “no” for continued prohibition?

2. If either or both of the candidates answer “no,” or try to waffle on the issue, read the statement from the retired DEA agents, and then ask: How do you respond to the arguments of people with experience, such as Agents Capasso and Selander, who write that prohibition doesn’t keep marijuana off our streets or decrease use but that it does does result in billions of dollars in profits flowing to drug cartels? Aren’t there sound domestic and foreign-policy arguments for legalization?

Yes, of course, Donald Trump might still argue that a wall would somehow solve every problem. Hillary Clinton might still try to suggest that settled issues need more study. (And viewers might really start to wish that Libertarian Gary Johnson and Green Jill Stein were on the stage to present alternative views.) But the debate about legalizing marijuana, which has for too long been neglected at the highest levels of American politics, would finally be given the hearing it deserves.

I really like this proposed framing of a marijuana reform question, although first-debate moderator Lester Holt could also find lots of ideas for other sharp marijuana reform questions from a number of these recent posts at Marijuana Law, Policy and Reform:

September 26, 2016 in Campaign 2016 and sentencing issues, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

Friday, September 23, 2016

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3)

Friday, August 26, 2016

"Where Recreational Marijuana Is Legal, Should Those in Prison for Weed Crimes Get a Puff, Puff, Pass?"

Marijuana-Pot-arrestThe question in the title of this post is not only one that I have given a lot of thought to in recent years, but also the headline of this recent article from The Root. The piece usefully highlights that California's marijuana legalization initiative to be voted upon in November speaks a bit to this issue.  Here are excerpts from the piece:

Twenty years ago, Rico Garcia was 21 when he got caught up in a marijuana sting in Colorado with a friend who wanted to buy some weed. The seller turned out to be a police informant, and Garcia and his friend were arrested. “The police came and arrested us and said we were selling weed,” says Garcia, now a 41-year-old marijuana advocate who runs Cannabis Alliance for Regulation and Education. “My friend said it was his, but … under Colorado law at the time, 8 ounces was possession with intent and I got a felony.”

Garcia says he was a first-time offender and a public defender got him to agree to accept a plea deal. He didn’t realize the full ramifications of having such a charge on his record. “They said, ‘No jail’ — that’s how they get brown people — and I said, ‘That sounds nice,’” recalls Garcia, who is Puerto Rican. He says he got four years’ probation and was released from it in two years, but the felony is still affecting his life. “You’re pretty much disqualified for housing. … Most who could give you a loan for a car or house give you a different rate or simply won’t lend to you. You can’t own a firearm, even in a pro-gun state; you can’t get any government grants or hold certain occupational licenses.”

Even though medical and recreational use of marijuana is legal under most circumstances in Colorado, Garcia’s felony precludes him from being part of the weed boom the state is enjoying, a problem that plagues many people of color trying to get into the weed business. There’s also a debate about the fate of nonviolent offenders currently incarcerated for weed crimes in states where recreational marijuana is now legal. Some marijuana advocates support the idea of state pardons for offenders incarcerated for such crimes as more states consider legalizing recreational marijuana....

[T]here has been some debate among marijuana advocates over whether lawmakers and voters would support such an effort involving weed crimes because they had to walk such tightropes to get legislation for medical and recreational marijuana approved in the first place. California — where most advocates expect Proposition 64, the Adult Use of Marijuana Act, to pass in November in a state that has had a medical-marijuana program for 20 years — could set a national standard for the fate of nonviolent marijuana offenders caught up in the prison system.

Not only does Proposition 64 reduce the current penalty for selling marijuana for nonmedicinal purposes from up to four years in prison to six months in jail and a fine of up to $500, but it also includes big changes for those previously convicted of marijuana crimes. Those serving sentences for activities that are either legal or subject to lesser penalties under the new measure would be eligible to be resentenced. Plus, those who have already done their time could apply to have their convictions removed from their records....

But the politics surrounding whether nonviolent marijuana users should be pardoned or allowed to have their records expunged completely are complicated. In Colorado, Andrew Freeman says, people can apply to have their felony conviction for a marijuana offense that is no longer illegal under Amendment 64 changed to a misdemeanor. But that stays on your record.

Freedman notes that few of the people still in prison in Colorado for marijuana are there only for a single, nonviolent offense, which would make it easy for them to be released. According to a 2014 report (pdf) by the state’s Department of Corrections, there are only 71 nonviolent marijuana offenders among Colorado’s 20,300 inmates....

Tom Angell at the Brooklyn, N.Y.-based Marijuana Majority breaks it down even further, saying that the pardoning of nonviolent marijuana offenders has been part of a general debate among advocates about what is the best, most comprehensive marijuana-reform proposal that can be put on the ballot and garner the support of voters.

“I think there’s some question as to whether a sufficient number of voters would be skittish about the notion of releasing people from prison en masse,” Angell says. “In an ideal world, we want to release all the marijuana offenders yesterday! We absolutely do. But this is politics and reality, and you can’t let the perfect become the enemy of the good. We need to achieve what is achievable today and build on those victories and keep getting wins on the scoreboard.”

This Root story usefully highlights why folks interested in criminal justice and sentencing reform ought to keep a special eye on discussions and developments with marijuana reform in California this election season. Moreover, as this review of some recent posts from my Marijuana Law, Policy & Reform blog should highlight, I see no shortage of interesting marijuana reform issues that ought to interest criminal justice and civil rights folks:

August 26, 2016 in Clemency and Pardons, Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 16, 2016

Ninth Circuit panel rules appropriations rider precludes federal prosecution of individuals in complaince with state medical marijuana laws

A Ninth Circuit panel today finally ruled in US v. McIntosh, No. No. 15-10117 (9th Cir. Aug. 16, 2016) (available here), on a series of appeals concerning "whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws." Here is a key passage from the heart of the opinion:

DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws.  By officially permitting certain conduct, state law provides for nonprosecution of individuals who engage in such conduct.  If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.

We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.

Some previous related posts:

August 16, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, August 14, 2016

Realistic (though incomplete) discussion concerning how marijuana reform is not a panacea for mass incarceration

Marc Mauer has this timely and effective new commentary in The Hill headlined "Can Marijuana reform end mass incarceration?". Any regular reader of this blog knows that the only simple and accurate answer to this question is "no," but the commentary provides a fuller accounting of some reasons why I see many possible positive synergies between sentencing reform and marijuana reform movements. Here are excerpts:

This week’s DEA decision to keep marijuana classified as a Schedule I drug (categorized as having no medical potential and a high potential for abuse) has disappointed advocates for drug policy reform. They contend that marijuana is less dangerous and addictive than drugs like cocaine and heroin, or even alcohol.  But many reformers also argue that marijuana reform is the first step in ending mass incarceration.  In many respects this appears to be wishful thinking.

There’s no question that the “war on marijuana” is overblown and unproductive. Since the early 1990s the focus of drug arrests nationally has shifted from a prior emphasis on cocaine and heroin to increasing marijuana arrests.  By 2014 marijuana accounted for nearly half of the 1.5 million drug arrests nationally. But while this elevated level of marijuana enforcement is counterproductive in many respects, there is little evidence to indicate that it has been a substantial contributor to mass incarceration.  Of the 1.5 million people in state or federal prisons, only about 40,000 are incarcerated for a marijuana offense.  The vast majority of this group is behind the walls for selling, not using, the drug, often in large quantities.  We could debate whether even high-level marijuana sellers should be subject to lengthy incarceration, but they constitute less than 3% of the prison population.

In other respects, though, marijuana law enforcement imposes substantial costs on the justice system.  Few marijuana arrests may result in a prison term, but they consume enormous resources through police time making arrests and court appearances, probation and parole revocations, and time spent in local jails following arrest or serving a short sentence. And all of this activity comes with public safety tradeoffs.  Time spent by police making marijuana arrests is time not spent responding to domestic violence disputes or guns on the streets.

While it may be misleading to portray the marijuana reform movement as the beginning of the end of mass incarceration, there are ways in which we could transform the national dialogue to make a more direct link.  For a start, we should call attention to the parallels between marijuana and the overall drug war.  In particular, the drug war has prioritized supply reduction through international interdiction campaigns and a heavy-handed law enforcement response.  This approach has had little impact on either drug availability or price, and has drained resources from more effective allocations to prevention and treatment programming.

The racial disparities of marijuana law enforcement are emblematic of the drug war as well, with African Americans more than three times as likely to be arrested for a marijuana offense as whites, despite similar rates of use. Such outcomes bring to mind the vast disparities in crack cocaine arrests, as well as the use of “stop and frisk” policing tactics often premised on drug law enforcement, and exacting a substantial toll in communities of color....

There is reason for hope that change may be at hand. National drug policy is shifting toward a greater emphasis on treatment approaches to substance abuse, and thoughtful leaders in law enforcement are serving as models for how to engage communities in collaborative efforts for promoting public safety.  The national debate on drug policy is worthwhile on its own, but we should also seek to extend that conversation into the realm of mass incarceration.

For reasons both practical and political, it is appropriate for Mauer and others to be quick to note that marijuana reform will not "end" mass incarceration. At the same time, given that a wealth of other reforms at the state and national level over the last decade has done no more than keep incarceration levels flat, a reduction of 40,000 prisoners in state and federal prisons would still mark a significant achievement in these modern times. Moreover, and as Mauer suggested, national marijuana reform not only could help demonstrate that public-health and regulatory approaches to drug issues are more cost-effective than criminal justice prohibitions, but also could provide a significant source of new public revenue for prevention and treatment programming.

One of many reasons I have become so interested in marijuana reform developments is because I have grown so frustrated in recent years at the seeming inability (or unwillingness) of elite policy-makers (especially in DC) to take bold action to deal with modern mass incarceration. Tellingly, modern marijuana reform in the United States is a ground-up movement that has been engineered at the local and state level despite disconcerting and persistent opposition by elite policy-makers (such as the Obama Administration at its DEA).  I continue to fear that elite policy-makers will continue to fail to see that the vast marijority of Americans are eager to move dramatically away from blanket federal marijuana prohibition, though I also expect a lot of significant developments in this space once we get through the 2016 election cycle.  With nearly 25% of the US population in numerous states that will be voting on marijuana reforms this November (most notably California and Florida), this election year will be the closest possible to a national referendum on marijuana prohibition.  If reform wins big with voters in most states this fall, I think elite policy-makers will finally fully appreciate which way these reform winds are now blowing.

In the meantime, here are some recent highlights on related front from my blogging efforts of late over at Marijuana Law, Policy & Reform

August 14, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)