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July 7, 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 at 10:49 AM | Permalink


Sorry Jack but it's not your job to decide what federal laws to enforce. So long as federal law says that marijuana is illegal both to possess and use that is the law you need to follow. The fact that states and localities say otherwise is irrelevant.

Posted by: Soronel Haetir | Jul 7, 2018 11:22:26 AM

Congress should develop rules to fast track the impeachment of lawless federal judges. All judicial review, all deviations, all executive regulation are in violation of Article I Section 1. This section of the constitution grants "all" law making powers to the Congress.

Posted by: David Behar | Jul 8, 2018 2:34:02 PM

Hes not following the letter kf law, big deal. Everyone knows that federal inmates serve roughly 3 times what similar state crimes do. Then on top if it they have to putts with supervised release. and any slight slips you go back. Uts very diffucult to get out if the federal system, its a long gauntlet.

Posted by: MidWestGuy | Jul 8, 2018 10:23:20 PM

Soronel - While it may be illegal to smoke marijuana (in some if not most places) - the Judge is simply saying he will not revoke their Supervised Release term (in other words send the defendant to prison for a period of time). The Judge can still ensure the defendant goes to treatment or provide additional resources through the US Probation Office who supervises said defendants. While it may appear that a Judge is mandated to "revoke TSR" when a defendant tests positive to THC. See 18 USC 3583(g) - below -- there is also an exception found at 18 USC 3583(d) - see also below - -

(g)Mandatory Revocation for Possession of Controlled Substance or Firearm or for Refusal To Comply With Drug Testing.
—If the defendant—

(1) possesses a controlled substance in violation of the condition set forth in subsection (d);
(2) possesses a firearm, as such term is defined in section 921 of this title, in violation of Federal law, or otherwise violates a condition of supervised release prohibiting the defendant from possessing a firearm;
(3) refuses to comply with drug testing imposed as a condition of supervised release; or
(4) as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year;
the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).

The exception as noted -

(d) The results of a drug test administered in accordance with the preceding subsection shall be subject to confirmation only if the results are positive, the defendant is subject to possible imprisonment for such failure, and either the defendant denies the accuracy of such test or there is some other reason to question the results of the test. A drug test confirmation shall be a urine drug test confirmed using gas chromatography/mass spectrometry techniques or such test as the Director of the Administrative Office of the United States Courts after consultation with the Secretary of Health and Human Services may determine to be of equivalent accuracy. The court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past participation in such programs, warrants an exception in accordance with United States Sentencing Commission guidelines from the rule of section 3583(g) when considering any action against a defendant who fails a drug test. The court may order, as a further condition of supervised release, to the extent that such condition—

Posted by: atomicfrog | Jul 9, 2018 10:08:51 AM

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