Tuesday, May 11, 2021

Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable

I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.

The dissenting opinion concluded this way:

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.

This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:

A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.

I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department.  And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but  the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.

Prior related post:

May 11, 2021 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Monday, May 10, 2021

Two sharp discussions of the inefficacy and inequities of the war on drugs

Today I saw two different types of commentary coming from two different authors saying in different ways the same fundamental resolute point: the war on drugs has been a failure full of injustices and we must dramatically change course.  Both pieces should be read in full, and I hope these snippets prompt clicks through:

First, be sure to check out Nora Volkow, director of the National Institute on Drug Abuse (NIDA), Health Affairs blog entry titled "Addiction Should Be Treated, Not Penalized." (Hat tip: Marijuana Moment).  Here are excerpts (links from original):

[Health] disparities are particularly stark in the field of substance use and substance use disorders, where entrenched punitive approaches have exacerbated stigma and made it hard to implement appropriate medical care. Abundant data show that Black people and other communities of color have been disproportionately harmed by decades of addressing drug use as a crime rather than as a matter of public health....

Although statistics vary by drug type, overall, White and Black people do not significantly differ in their use of drugs, yet the legal consequences they face are often very different. Even though they use cannabis at similar rates, for instance, Black people were nearly four times more likely to be arrested for cannabis possession than White people in 2018.  Of the 277,000 people imprisoned nationwide for a drug offense in 2013, more than half (56 percent) were African American or Latino even though together those groups accounted for about a quarter of the US population.

During the early years of the opioid crisis in this century, arrests for heroin greatly exceeded those for diverted prescription opioids, even though the latter — which were predominantly used by White people — were more widely misused.  It is well known that during the crack cocaine epidemic in the 1980s, much harsher penalties were imposed for crack (or freebase) cocaine, which had high rates of use in urban communities of color, than for powder cocaine, even though they are two forms of the same drug.  These are just a few examples of the kinds of racial discrimination that have long been associated with drug laws and their policing....

Drug use continues to be penalized, despite the fact that punishment does not ameliorate substance use disorders or related problems.  One analysis by the Pew Charitable Trusts found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.  

Imprisonment, whether for drug or other offenses, actually leads to much higher risk of drug overdose upon release. More than half of people in prison have an untreated substance use disorder, and illicit drug and medication use typically greatly increases following a period of imprisonment. 

Second, be sure to also read Nkechi Taifa, convener of the Justice Roundtable, commenting at the Brennan Center under the title "Race, Mass Incarceration, and the Disastrous War on Drugs."  Here is how the (relatively more optimistic) piece concludes (again links in original):

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing.  I sensed the beginning of this with the 2008 Second Chance Reentry bill and 2010 Fair Sentencing Act, which reduced the disparity between crack and powder cocaine.  I smiled when the 2012 Supreme Court ruling in Miller v. Alabama came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment's prohibition against cruel and unusual punishment.  In 2013, I was delighted when Attorney General Eric Holder announced his Smart on Crime policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players.  The following year, I applauded President Obama’s executive clemency initiative to provide relief for many people serving inordinately lengthy mandatory-minimum sentences.  Despite its failure to become law, I celebrated the Sentencing Reform and Corrections Act of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018 First Step Act.  All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough.  We have experienced nearly five decades of destructive mass incarceration.  There must be an end to the racist policies and severe sentences the War on Drugs brought us.  We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds.  End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders.  Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences.  Make sentences retroactive where laws have changed.  Support categorical clemencies to rectify past injustices.

It is time for bold action.  We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

May 10, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, May 04, 2021

SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity

On Tuesday morning, the Supreme Court heard oral argument in Terry v. United States, and the full oral argument is available here via C-SPAN.  The full argument runs nearly 90 minutes and the quality of the advocacy makes it worth the full listen.  But one can get a much quicker flavor of the tenor of the discussion from just a scan of the headlines of these press accounts of the argument:

From the AP, "Supreme Court skeptical of low-level crack offender’s case"

From Bloomberg Law, "Biden Switch Unlikely to Save Crack Offenders at Supreme Court"

From Law & Crime, "Biden Administration Flip-Flopped Its Position in Case Over Crack Cocaine Sentences. SCOTUS Did Not Seem Pleased."

From Reuters, "U.S. Supreme Court skeptical of expanding crack cocaine reforms"

From USA Today, "Supreme Court skeptical of applying Trump-era criminal justice law retroactively for small drug offenses"

From the Washington Post, "Supreme Court seems skeptical that law helps all convicted of crack cocaine offenses"

All the "skeptical" questions from the Justices certainly leaves me thinking that the Supreme Court will rule that Tarahrick Terry is not entitled to resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  That may not ultimately be such a big loss for Mr. Terry since, as the Acting SG explained to SCOTUS back in March, he is already finishing up his prison sentence through home confinement and that term is to be completed in September.  I am hopeful that the relatively small number of similarly situated defendants who would be adversely impacted by a Terry loss would have some similar silver lining.

Prior related posts:

May 4, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 03, 2021

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

May 3, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, April 21, 2021

Great coverage of the success of "The Mother Teresa of Pot Prisoners"

In years past, I have tended to dislike the uptick in marijuana media coverage around 4/20 because a range of serious issues, and especially serious criminal justice issues, often seemed not to get the serious coverage that they deserved.  But with marijuana reform continuing to pick up momentum, I think the 4/20 media mania is getting a little better.  And I will always be grateful for whatever leads to media coverage of my favorite advocate of criminal justice reform in the marijuana space.  She is the focal point of this lengthy new Input piece with this great full title: "How ‘The Mother Teresa of Pot Prisoners’ saved her brother from dying behind bars: Beth Curtis’ LifeforPot.com may look janky, but it’s been amazingly effective in getting nonviolent marijuana offenders out of prison."  I recommend the piece in full, and here are snippets:

On 4/20, Craig [Cesal] will be on a fishing trip in West Palm Beach with a group of other marijuana offenders who’ve managed to have their sentences reduced. “There’s a cannabis company that’s paying to fly a bunch of us former pot lifers down,” Cesal says. “Of course, Beth is going down, because we all have ties to her.”

The “Beth” he’s referring to is 79-year-old Beth Curtis from Zanesville, Ohio, the founder of LifeforPot.com, an amateurish little site she built in 2009 to raise awareness about people like Craig — or more specifically, people like her brother, John Knock, who was sentenced to two life terms plus 20 years for a first-time nonviolent marijuana-only offense. Beth has spent more than a decade aggressively advocating for federal clemency on Knock’s and others’ behalf, earning her the nickname the Mother Teresa of Pot Prisoners.

Curtis hoped that by giving people like her brother a presence on the internet, her website would help to raise public awareness about an aspect of criminal justice sentencing most people didn’t seem to know about. “When I talked about somebody serving life for marijuana, honestly people didn’t believe it,” she says. “They’d think, ‘There has to be a dead body somewhere.’ Indeed, there do not have to be any dead bodies, or even a gun.”...

When I ask Curtis if she built the site herself, she laughs out loud. “Yes, can’t you tell?” she replies. Clunky as it is, the current version is much improved from the original, which she built using “CafePress or something” and became a running joke among her friends. When an article in the Miami New Times mentioned her “scrappy-looking site,” fellow clemency advocate Dennis Cauchon called her and said “You know, ‘scrappy’ rhymes with something,” she relates. “And that’s indeed true,” she adds.

Crappiness aside, the site’s been effective. Of the 39 people featured on Life for Pot, 24 have been granted clemency or compassionate release — including, most recently, Knock, who was granted clemency by President Trump in January.

“She did it,” Knock, 73, says of his sister. “One little lady, barely five feet tall, and she just kept pushing and pushing and pushing.” For someone as driven as Curtis, failure was not an option: “I couldn’t imagine that I would die while he was still confined behind bars. The thought sickened me.”

April 21, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 20, 2021

Mixed messages on mandatory minimums from executive branch in New Jersey witrh a retroactive kicker

In this post last month, I flagged the debate in New Jersey where the Governor was threatening to veto a bill to repeal mandatory minimums for certain non-violent crimes because it repealed too many mandatory minimum sentences.  Sure enough, that veto happened yesterday, but so too did an interesting related action from the NJ Attorney General.  This Politico piece, headlined "Murphy vetoes mandatory minimum bill as Grewal unilaterally eliminates some sentences," provides these details (with some emphasis added):

Gov. Phil Murphy on Monday vetoed a bill that would do away with mandatory minimum prison terms for non-violent crimes, excising sections that would eliminate the sentences for corruption offenses.  At the same time, Attorney General Gurbir Grewal issued a directive requiring that prosecutors make use of a provision in New Jersey law allowing them to set aside mandatory minimum sentences for drug-related crimes.

“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests,” Murphy wrote in his veto message, which also took a shot at former President Donald Trump.  “I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.”

The two executive actions are the culmination of an eight-month political fight between the Murphy administration and the Democrat-controlled Legislature over what began as benign legislation that followed exactly the recommendations of the New Jersey Criminal Sentencing & Disposition Commission.  The commission, in a November 2019 report, recommended eliminating mandatory sentences for a wide swath of mostly drug and property crimes with the aim of reducing racial disparities among the incarcerated.

Murphy’s conditional veto essentially returns the legislation, NJ S3456 (20R), to its initial form — which did not address corruption offenses — before state Sen. Nicholas Sacco began a successful effort to change it. Grewal’s directive may help allay the concerns of criminal justice advocates who did not want to see mandatory minimum sentences upheld over a political fight, leading some to throw their support behind the legislative effort.  The directive goes further than the legislation would have, applying retroactively to prisoners serving mandatory minimum sentences for drug offenses.  The directive does not apply to mandatory minimum sentences for non-violent property crimes, and it was not immediately clear how many inmates are serving time under those laws.

“It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” Grewal said in a statement.  “It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences.  This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color.  We can wait no longer. It’s time to act.”

New Jersey Together, a coalition of criminal justice reform advocates, said in a statement that “ending mandatory minimum sentences for non-violent drug crimes prospectively and for those currently incarcerated will be a huge step in the right direction.” “Now, the work should begin with the governor and the Legislature to make this permanent and to end mandatory minimum sentencing as a whole,” the group said.

Amol Sinha, executive director of the ACLU-NJ, said in a statement that even though Grewal’s directive takes “significant steps to mitigate the harms of some of the most problematic mandatory minimums,” his group is “disappointed” because “our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans.” Sinha urged the Legislature to concur with Murphy’s veto....

Grewal’s directive allows prosecutors to seek periods of parole ineligibility “when warranted to protect public safety based on the specific facts of the case.”  Advocates have long sought to repeal mandatory minimum sentences, especially those that came about as part of the “War on Drugs.”  For instance, New Jersey imposes harsh mandatory sentences for those caught selling drugs within 1,000 feet of a school, a crime far more likely to harshly punish dealers in denser urban areas and who are more likely to be Black and Hispanic.  At the time of a 2016 report by The Sentencing Project, New Jersey incarcerated white people at a rate of 94 per 100,000 compared to 1,140 for Black and 206 for Hispanic people.

A bill that mirrored the recommendations of the New Jersey Criminal Sentencing & Disposition Commission was nearing the final stages of the the legislative process when Sacco (D-Hudson) quietly requested an amendment to eliminate the mandatory minimum sentences for official misconduct.  Sacco later acknowledged to POLITICO that he requested the amendment. Walter Somick, the son of Sacco‘s longtime girlfriend, is facing several corruption-related charges, including official misconduct, over an alleged no-show job at the Department of Public Worker in North Bergen, where Sacco is mayor and runs a powerful political machine....

“I am cognizant of the fact that Attorney General‘s directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute,” Murphy said. “I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.”

Because I generally view all mandatory minimum sentencing provisions for nonviolent offenses to be problematic, I am a bit disappointed by the veto of the legislative reform here.  But because I generally favor retroactive reforms to enable excessive prior prison terms to be addressed, the retroactive relief made possible by the NJ AG is a comforting related development.  The basics of the AG action is discussed in this official press statement and the full 11-page directive can be accessed at this link.

Prior related posts:

April 20, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 12, 2021

DEPC-hosted symposium, "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," now available online

Fentanyl-Analogues-Conference_for-social_v3As detailed in this press release, a coalition of over drug policy, civil rights, criminal justice and public health organizations are urging Congress and the Biden Administration to allow temporary class-wide emergency scheduling of fentanyl-related substances to expire in May 2021.  This letter to members of Congress on this topic highlights why this issue is, in many ways, a sentencing story because "class-wide scheduling of fentanyl analogues ... expands the application of existing severe mandatory minimum sentencing laws enacted by Congress in the 1980s to a newly scheduled class of fentanyl-related compounds":

For example, just a trace amount of a fentanyl analogue in a mixture with a combined weight of 10 grams — 10 paper clips — can translate into a five-year mandatory minimum, with no evidence needed that the seller even knew it contained fentanyl.  In addition, current laws impose a statutory maximum sentence of 20 years for just a trace amount of a fentanyl analogue in a mixture with a combined weight of less than 10 grams."

The advocacy letter also notes the practical realities of existing laws and concludes with a pitch for the Biden Administration to make good of avowed opposition to mandatory minimum sentencing schemes:

Between 2015 and 2019, prosecutions for federal fentanyl offenses increased by nearly 4,000%, and fentanyl-analogue prosecutions increased a stunning 5,000%.  There are significant racial disparities in these prosecutions, with people of color comprising almost 75% of those sentenced in fentanyl cases in 2019.  This holds true for fentanyl analogues, for which 68% of those sentenced were people of color.  In addition, more than half of all federal fentanyl-analogue prosecutions in 2019 involved a street-level seller or other minor role; only 10.3% of these cases involved the most serious functions."...

The expiration of class-wide scheduling is an opportunity for the Biden administration and Congress to make good on a commitment to end mandatory minimums and embrace a public health approach.  The class-wide scheduling discussion allows Congress and this administration the opportunity to choose a new path on drug policy.  The Biden administration has expressed support for ending mandatory minimums. Allowing this policy to expire aligns with Biden’s stated support of ending mandatory minimums and treating drugs as a public health issue

Last month, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law had the honor last month of hosting a multi-panel virtual symposium, titled "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," which explored these issues at great length with a great set of speakers.  Here was how the event was set up:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills.  In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that class-wide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths. Participants will learn about the relationship between class-wide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose.  Participants will be presented with an intersectional discussion of the issue that examines class-wide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

I am pleased to now be able to report that a transcript and captioned recordings of each panel are available now. 

UPDATE: The GAO has now released this new report on this topic under the title "Synthetic Opioids: Considerations for the Class-Wide Scheduling of Fentanyl-Related Substances."

In addition, as detailed at this webpage, The US House of Representatives' Subcommittee on Health of the Committee on Energy and Commerce will hold a legislative hearing on Wednesday, April 14, 2021, at 10:30 a.m. via Cisco WebEx entitled, "An Epidemic within a Pandemic: Understanding Substance Use and Misuse in America."  The written testimony of the scheduled witnesses suggests that class-wide scheduling of fentanyl analogues will be a major topic of the hearing.

ANOTHER UPDATE: The Intercept has this clear and effective article on these topics under the headline "Biden Looks To Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing."  Here are its opening paragraphs:

THE BIDEN ADMINISTRATION is expected to announce support this week for the temporary extension of a Trump-era policy expanding mandatory minimum sentencing to cover a range of fentanyl-related substances.  More than 100 civil rights, public health, and criminal justice advocacy groups sent a letter last week urging Congress and President Joe Biden to oppose any extension of the Trump policy.

The administration can’t extend the policy without congressional action, which it is expected to support during a Wednesday hearing on substance use before the House Energy and Commerce Committee, according to two groups on the letter and several Democratic aides.  The aides note that the administration will likely request additional time to explore the policy’s ramifications and has not yet decided whether it will adopt a full extension.

April 12, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Friday, April 09, 2021

Latest American Journal of Bioethics issue takes hard look at "War on Drugs"

Download (17)I am pleased to have discovered that new issue of the American Journal of Bioethics has a lead article and a host of responsive commentaries on the modern state of debate over the war on drugs.  Here are links to all the great looking content:

Ending the War on Drugs Is an Essential Step Toward Racial Justice by Jeffrey Miron & Erin Partin

Racial Justice Requires Ending the War on Drugs by Brian D. Earp, Jonathan Lewis, Carl L. Hart & with Bioethicists and Allied Professionals for Drug Policy Reform

Ending the War on People with Substance Use Disorders in Health Care by Kelly K. Dineen & Elizabeth Pendo

Legalization of Drugs and Human Flourishing by Marianne Rochette, Esthelle Ewusi Boisvert & Eric Racine

Ending the War on Drugs: Public Attitudes and Incremental Change by Joseph T. F. Roberts

Some Contributions on How to Formulate Drug Policies and Provide Evidence-Based Regulation by S. Rolles, D. J. Nutt & A. K. Schlag

Ending the War on Drugs Need Not, and Should Not, Involve Legalizing Supply by a For-Profit Industry by Jonathan P. Caulkins & Peter Reuter

Racial Justice and Economic Efficiency Both Require Ending the War on Drugs by Pierre-André Chiappori & Kristina Orfali

Ending the War on Drugs Requires Decriminalization. Does It Also Require Legalization? by Travis N. Rieder

Beyond Decriminalization: Ending the War on Drugs Requires Recasting Police Discretion through the Lens of a Public Health Ethic by Brandon del Pozo, Leo Beletsky, Jeremiah Goulka & John Kleinig

Drug Legalization is Not a Masterstroke for Addressing Racial Inequality by Wayne Hall & Adrian Carter

The Importance of Rights to the Argument for the Decriminalization of Drugs by Kyle G. Fritz

The “War on Drugs” Affects Children Too: Racial Inequities in Pediatric Populations by Emily W. Kemper, Emily Davis, Anthony L. Bui, Austin DeChalus, Melissa Martos, Jessica E. McDade, Tracy L. Seimears & Aleksandra E. Olszewski

“It’s a War on People …” by Jarrett Zigon

“Second Chance” Mechanisms as a First Step to Ending the War on Drugs by Colleen M. Berryessa

April 9, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Sunday, April 04, 2021

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Friday, April 02, 2021

ONDCP releases "Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One"

The Executive Office of The President Office Of National Drug Control Policy yesterday released this detailed 11-page document titled "The Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One."  For folks interesting in the potential future of the drug war at the federal level, the document makes for an interesting read.  Here is how it gets started (endnotes omitted):

The overdose and addiction crisis has taken a heartbreaking toll on far too many Americans and their families.  Since 2015, overdose death numbers have risen 35 percent, reaching a historic high of 70,630 deaths in 2019.  This is a greater rate of increase than for any other type of injury death in the United States.  Though illicitly manufactured fentanyl and synthetic opioids other than methadone (SOOTM) have been the primary driver behind the increase, overdose deaths involving cocaine and other psychostimulants, like methamphetamine, have also risen in recent years, particularly in combination with SOOTM.  New data suggest that COVID-19 has exacerbated the epidemic, and increases in overdose mortality6 have underscored systemic inequities in our nation’s approach to criminal justice and prevention, treatment, and recovery.

President Biden has made clear that addressing the overdose and addiction epidemic is an urgent priority for his administration.  In March, the President signed into law the American Rescue Plan, which appropriated nearly $4 billion to enable the Substance Abuse and Mental Health Services Administration and the Health Resources and Services Administration to expand access to vital behavioral health services.  President Biden has also said that people should not be incarcerated for drug use but should be offered treatment instead.  The President has also emphasized the need to eradicate racial, gender, and economic inequities that currently exist in the criminal justice system.

These drug policy priorities — statutorily due to Congress by April 1st of an inaugural year — take a bold approach to reducing overdoses and saving lives.  The priorities provide guideposts to ensure that the federal government promotes evidence-based public health and public safety interventions.  The priorities also emphasize several cross-cutting facets of the epidemic, namely by focusing on ensuring racial equity in drug policy and promoting harm-reduction efforts.  The priorities are:

  • Expanding access to evidence-based treatment;
  • Advancing racial equity issues in our approach to drug policy;
  • Enhancing evidence-based harm reduction efforts;
  • Supporting evidence-based prevention efforts to reduce youth substance use;
  • Reducing the supply of illicit substances;
  • Advancing recovery-ready workplaces and expanding the addiction workforce; and
  • Expanding access to recovery support services.

ONDCP will work closely with other White House components, agencies and Congress to meet these priorities.  ONDCP will also work closely with State, local, and Tribal governments, especially around efforts to ensure that opioid lawsuit settlement funds are used on programs that strengthen the nation’s approach to addiction.

April 2, 2021 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, March 26, 2021

Senators Durbin and Lee re-introduce "Smarter Sentencing Act" to reduce federal drug mandatory minimums

As detailed in this new press release, it looks like some notable US Senators are trying yet again to reform federal mandatory minimums.  Here are the basics from the release:

Sen. Mike Lee (R-Utah) cosponsored the “Smarter Sentencing Act,” bipartisan legislation designed to bring judicial discretion and flexibility to non-violent drug charge sentencing. The bill is sponsored by Sen. Dick Durbin (D- Ill.) and cosponsored by 11 of their colleagues.

Since 1980, the number of inmates in federal prison has increased by 653%.  About 50% of those federal inmates are serving sentences for drug-related offenses, increasing the taxpayer burden by more than 2,000%.  In short, federal incarceration has become one of our nation’s biggest expenditures, dwarfing the amount spent on law enforcement.

Our burgeoning prison population traces much of its growth to the increasing number and length of certain federal mandatory sentences.  More than 60% of federal district court judges agree that existing mandatory minimums for all offenses are too high.  In the words of the members of the bipartisan U.S. Sentencing Commission, “the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently . . . .”

“Our current federal sentencing laws are out of date and often counterproductive,” said Sen. Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo.  The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said.  “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Lee and Durbin first introduced the Smarter Sentencing Act in 2013.  Several important reforms from the Smarter Sentencing Act were included in the landmark First Step Act, which was enacted into law in 2018.  The central remaining sentencing reform in the Durbin-Lee legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.  The Congressional Budget Office has estimated that implementation of this provision would save taxpayers approximately $3 billion over ten years.

The full list of cosponsors includes: Sens. Patrick Leahy (D-Vt.), Roger Wicker (R-Miss.), Sheldon Whitehouse (D-R.I.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Ct.), Tammy Baldwin (D-Wis.), Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), Angus King (I-Maine), and Tim Kaine (D-Va.).

I am not particularly optimistic that the SSA will make it through Congress this time around, but I should note that prior iterations of this bill got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to "work for the passage of legislation to repeal mandatory minimums at the federal level."  Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not got far enough because it merely seeks to "reduce mandatory minimum penalties for certain nonviolent drug offenses," rather than entirely eliminate them.

March 26, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (4)

Wednesday, March 24, 2021

Notable Seventh Circuit panel finds insufficient explanation for revoking supervised release for missed drug test and assessments

Late last week, a Seventh Circuit panel handed down an interesting and seemingly important ruling in US v. Jordan, No. 19-2970 (7th Cir. Mar. 18, 2021) (available here). The 10-page unanimous ruling should be of interest to all federal sentencing fans because the ruling gives some teeth to "the parsimony principle of 18 U.S.C. § 3553(a)," but it also ought to be of interest to any other criminal justice fans concerned about drug policy and about how community supervision and revocations can undergird mass incarceration.

The start of the opinion highlights why the Jordan ruling caught my attention:

During his first three months while on supervised release, Anthony Jordan consistently tested negative on drug tests and called the probation office to find out about his next required tests.  Nonetheless, over two days in June 2019, he missed a drug test and two assessments, prompting his probation officer to petition to revoke his supervised release. The district court ruled that Jordan had committed the violations, revoked his supervised release, and sentenced him to six months in prison followed by 26 months of supervised release (including 120 days in a halfway house).  Jordan has appealed.  We conclude that the district court did not sufficiently explain its decision, consider Jordan’s defense that his violation was unintentional, or otherwise ensure that its sentence conformed to the parsimony principle of 18 U.S.C. § 3553(a).  We therefore reverse the judgment.

And here are excerpts from the heart of the opinion (which is very much worth reading in full, in part because it notes that the feds here "asked for 14 months of imprisonment"), as well as its closing paragraph:

Jordan’s core claim is that the district court failed to sufficiently justify both the revocation and prison sentence.  He invokes the due process clause of the Fifth Amendment, but we think this case fits better within “the supervisory power of an appellate court to review proceedings of trial courts and to reverse judgments of such courts which the appellate court concludes were wrong.” Cupp v. Naughten, 414 U.S. 141, 146 (1973).  This authority permits us to require sound procedures that are not specifically commanded by the statutes or other relevant provisions.  Thomas v. Arn, 474 U.S. 140, 146–47 (1985); Terry v. Spencer, 888 F.3d 890, 895 (7th Cir. 2018).

Under our supervisory authority, we see two flaws in the district court’s procedures and decision. First, the district court did not mention, let alone adequately explain, its rejection of Jordan’s defense that he lacked intent to violate the conditions of supervised release and had made reasonable and good faith attempts to comply.  Such an explanation is required.  United States v. Hollins, 847 F.3d 535, 539 (7th Cir 2017).  The need to address the defense is particularly important here because, before hearing a word of testimony, the court told Jordan that it was adopting the findings of violations from the probation officer’s memo.  We do not know why the court seemed to make findings about violations before the planned hearing on whether violations occurred.  But because it seemed to signal its view of the facts before hearing any evidence, we think that after the court heard the evidence, it needed to explain why that evidence did not move the court from that earlier view.  And it did not do so here.  We hasten to add that a revocation may have been justified.  We recognize that the testimony of offenders on supervised release might not be credible, and we know that district judges may hear a lot of creative excuses for failing to comply with conditions of supervised release.  But without an evaluation of the defense, we cannot review whether the district court’s rationale for rejecting it was permissible.

Second, the district court did not adequately explain its decision to imprison Jordan again for six months.  Sentences must always conform to the “broad command” of the parsimony principle, which requires that sentences be “‘sufficient, but not greater than necessary to comply with’ the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a). This principle is especially important in a case like this where the alleged violations were not criminal, the defendant asserted a lack of intent, and there was evidence of reasonable efforts and good faith, putting in question which of the purposes of sentencing apply.

The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society.  Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.”  Johnson v. United States, 529 U.S. 694, 708–09 (2000).  Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition....

We do not mean to imply that imprisonment may never be the appropriate response to violations like those charged here, missing a drug test and appointments for treatment. The district court may have had in mind the notion that the assurance of reimprisonment — even for a short time for intentional or even careless violations — deters future violations. We understand that different judges have different philosophies in balancing the factors under § 3553(a). But the district court needed to say explicitly why it thought that six months in prison was necessary for a defendant who had tested negative on every test and committed no other violations.

March 24, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, March 20, 2021

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

March 20, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, March 19, 2021

Small, and not quite steady, reform progress in a not quite new era for criminal justice reform

An interesting set of new press pieces highlight ways in which the criminal justice times seem to be a-changing during the Biden era, but not yet quite as much or as fast as lots of advocates might be hoping or expecting.  Here they are with a brief excerpt:

From BuzzFeed News, "COVID-19 Has Torn Through Prisons. Advocates Want Biden To Act Now"

Nearly all of the groups who spoke with BuzzFeed News said that they’ve participated in briefings and have had conversations with White House staff to raise concerns about BOP policy, including compassionate release and underused policies to thin prison populations during the pandemic.  Advocates have specifically pushed the administration to direct the BOP to use its expanded authority to grant home confinement under last year’s coronavirus relief plan.

Advocates have had a mixed response to those conversations, with optimism about prospective change mingled with frustration about slow-moving progress.

From Slate, "The Biden Administration Takes a Step Toward Undoing the Damage of the War on Drugs"

In September, [Tarahrick] Terry petitioned the Supreme Court saying he qualified for a sentence reduction [of his 188-month sentence for possessing 3.9 grams of crack cocaine in 2008], because the First Step Act made 2010’s Fair Sentencing Act retroactive. His case got a boost earlier this week, when President Biden’s Justice Department informed the Supreme Court they believe that Terry, and others who were incarcerated for low-level crack cocaine offenses, should have their sentences reduced under the First Step Act. The court plans to hear the case later this year.

From Vox, "The EQUAL Act would finally close the cocaine sentencing disparity"

Reps. Don Bacon (R-NE) and Kelly Armstrong (R-ND) have already cosponsored [the EQUAL Act]. But in a statement to Vox, Bacon was less optimistic about the timeline, even as he said that eliminating the cocaine sentencing disparity is only one part of a broader justice reform push he wants to tackle.

“While I am optimistic it will be voted on in the House this Congress, I don’t have a projected timeline for the bill at this stage and hope to gain more bipartisan support as it makes its way through the legislative process,” he said. The Senate is where it will be more critical to find Republican support, considering the chamber’s 50-50 split. Thus far, only Sens. Cory Booker and Sen. Dick Durbin (D-IL) have signed on.

Sen. Chuck Grassley, who worked with Durbin to introduce and shepherd the First Step Act through the Senate, would be a critical part of any bipartisan negotiation. In a statement to Vox, a spokesperson for Grassley said he was receptive to working with Democrats on the EQUAL Act, but that that process had not begun yet.

March 19, 2021 in Criminal justice in the Biden Administration, Drug Offense Sentencing, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, March 17, 2021

Reviewing all the notable criminal justice work of the Washington Supreme Court in recent times

Regular readers have likely noticed pretty regular posts about pretty notable criminal justice rulings coming from the Supreme Court of Washington. In this Slate piece, Mark Joseph Stern tells the story of this court's recent personnel changes and reviews some of these rulings. The piece, which is fully headlined "Washington State Shows How a Truly Progressive Court Changes Everything: Joe Biden should look to the state’s diverse and courageous Supreme Court when making nominations to the federal bench," starts this way (with links from the original):

The Washington Supreme Court is on a roll.  On March 11, it took the unprecedented step of outlawing mandatory sentences of life without parole for people under the age of 21 — making Washington the first state in the nation to extend such protections to defendants who, while technically adults at the time of their crime, have greater potential for rehabilitation because of their youth. The previous month, a majority of the court struck down Washington’s drug possession law, effectively legalizing possession of controlled substances while overturning thousands of convictions going back decades.  And, in January, the court made it easier for victims of police misconduct to sue law enforcement officers who violate their rights.

This extraordinary series of decisions shows how a diverse and progressive judiciary can make the country a more just and equitable place. The Washington Supreme Court’s members exemplify the kind of judges whom Joe Biden should be looking for as he prepares to announce his first slate of judicial nominees. To counter the current dominance of conservative ideology in the federal judiciary, liberals can’t rely on moderates committed to minimalism; they need a distinct vision of the law as a force of justice that guarantees equal rights and dignity to those who are impoverished, unpopular, and powerless. To find one, they need only look to Washington state.

Because it interprets its own state constitution, the Washington Supreme Court has much more leeway than a federal court to depart from SCOTUS jurisprudence.  States’ high courts have final say over the meaning of their own state constitutions, which gives justices room to expand rights that SCOTUS has constricted under the federal Constitution. Many state constitutions, including Washington’s, provide greater protections than the federal Constitution.  That’s why, in 2018, the Washington Supreme Court has permanently banned the death penalty and prohibited sentences of life without parole for juveniles—two steps SCOTUS has refused to take.

Those decisions were a preview of things to come. In 2019 and 2020, Democratic Gov. Jay Inslee appointed two new justices to the court: Raquel Montoya-Lewis, a Jewish Native American woman, and Grace Helen Whitener, a disabled Black lesbian immigrant.  (In November, the state voted overwhelmingly to keep both women on the bench.)  There, they joined Justice Mary Yu, an Asian American Latina lesbian, as well as Steven González, the current chief justice, who is Hispanic, and one of just two men on the nine-member court.  Inslee’s appointees created the most diverse high court in American history.

March 17, 2021 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, March 16, 2021

Amusing (but still quite serious) reminder of what not to do while awaiting federal sentencing

A Sixth Circuit panel yesterday issued a notable (unpublished) opinion in US v. Cadieux, No. 20-1689 (6th Cir. Mar. 15, 2021) (available here).  It is hard not to be somewhat amused by the facts of the case, but it is still important not to downplay the serious sentencing realities involved.  Here are the factual basics:

Cadieux was involved in a Michigan conspiracy to distribute marijuana in which he grew and then sold at least 100 pounds of processed marijuana over the course of two years to Andrew Bravo who then sold the drugs to others.  Cadieux was arrested and charged in December 2019 for his role in this drug-trafficking conspiracy.

He was very cooperative in the case against him.  Shortly after his arrest, he gave the government information and testified before a grand jury.  And after the court released him on bond, Cadieux entered into a plea agreement and pled guilty to conspiracy to manufacture, distribute, and possess with intent to distribute 50 kilograms or more of marijuana. While out on bond, however, Cadieux also made some poor choices.

First, he violated his conditions of release when he ate a marijuana brownie, tested positive for marijuana three times, and took two Adderall pills prescribed to someone else. Second, he discussed details of his pending criminal investigation on a local radio show, “Free Beer and Hot Wings,” after the hosts asked listeners about the easiest money they had ever made.  Cadieux told the hosts that he had made about three million dollars in past three years growing and selling marijuana.  He acknowledged that he was going to prison for it.  But he said “it was worth it” because he was only going to prison for 15 to 24 months, and he could keep the money he made because he was “good at hiding” it. (R. 173, Presentencing Report, PageID 331.)  He told them his plan was to “get out and do it again,” but he said that the next time he was “gonna do it legally . . . but in [his] wife’s name” because he couldn’t “do it in [his] name no more.” (First Call.)  One of the hosts responded, “yeah, you’ll be a felon . . . .” (Id.)  Third, after realizing the call had been a mistake, Cadieux called again and asked the show to “dump a cup of coffee on the sound board and get rid of the call” because the call had upset his attorney. (R. 185, Sentencing Hearing, PageID 597.) He offered to pay for a replacement.

After Cadieux’s call to “Free Beer and Hot Wings,” the government investigated Cadieux’s concealment of drug money.  It “identified significant sums of unexplained cash hid[den] in his bank accounts.” (Id. at 602.)  And Cadieux agreed to voluntarily forfeit $75,000, which the government believed more accurately represented his drug profits than Cadieux’s statements on the air.

Critically, Cadieux's calls into the "Free Beer and Hot Wings" radio show ended up costing him a lot more than the forfeited $75,000.  Specifically, as a direct result of this call and his other pre-sentencing behavior, "probation’s presentence report (PSR) recommended an enhancement for obstruction of justice and refused to recommend a reduction for acceptance of responsibility."  The sentencing court adopted these recommendations:

It found that Cadieux was not entitled to the acceptance-of-responsibility reduction for two reasons: 1) Cadieux’s statements on the radio show indicating his intent to “go right back to it” coupled with his attempts to destroy the recording and 2) Cadieux’s continued drug use in violation of bond conditions. (Id. at 609-11.) It found the obstruction enhancement appropriate because “the phone calls were relevant for sentencing”; it was particularly troubled by “the request of the radio station to ditch the tape.” (Id. at 610.) The court sentenced him to 37 months.

The Sixth Circuit panel affirms these determinations and upholds the 37 month sentence.  Given that the defendant here might have only been looking originally at a little more than year in prison, it seems that his foolish braggadocio and related pre-sentencing behavior cost him more time in prison than his offense behavior of conspiring to distribute 50 kilograms or more of marijuana.

March 16, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3)

Monday, March 15, 2021

"Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues Confirmation"

Fentanyl-Analogues-Conference_for-social_v3-1536x858The title of this post is the title of this exciting multi-panel event taking place tomorrow that is being hosted by Ohio State's Drug Enforcement and Policy Center. The full agenda for the event is avalable at this link, and the speakers are profiled at this link, and background materials are assembled here.

Here is a description of the event from the DEPC main event page:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills. In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this invitation-only symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that classwide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths.  Participants will learn about the relationship between classwide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose. P articipants will be presented with an intersectional discussion of the issue that examines classwide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

As this description reveals, this event started as an "invitation-only symposium," but ir is now possible for folks to register for the event at the DEPC main event page.

March 15, 2021 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Thursday, March 11, 2021

US House subcommittee holds hearing on "Controlled Substances: Federal Policies and Enforcement"

As detailed at this link, the US House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing this morning on "Controlled Substances: Federal Policies and Enforcement."  Here were the witnesses:

Nicole M. Austin-Hillery Esq., Executive Director, US Program, Human Rights Watch

Dr. Howard Henderson Ph.D., Founding Director, Center for Justice Research, Texas Southern University Nonresident Senior Fellow in Governance, The Brookings Institution

Derek Maltz, Former Special Agent in Charge, DEA's Special Operations Division

Dr. Katharine Neill Harris, Alfred C. Glassell, III, Fellow in Drug Policy, Rice University's Baker Institute for Public Policy

House Judiciary Committee Chairman Jerrold Nadler released this statement in conjunction with the hearing, and here is an excerpt:

"This Congress, we need to continue our committee’s work to take steps to 'right the wrongs' from the failed drug war.  As we have all seen, that failure has been both exorbitantly expensive and frequently counterproductive, producing staggering incarceration rates for drug offenses and immeasurable harm to families, especially those coming from low-income or minority communities.

"As our witnesses will highlight today, too many people are serving unjustly lengthy prison sentences as a result of laws that were enacted decades ago imposing mandatory minimum sentences.  That approach was wrong then — and it continues to be wrong — disparately impacting minority communities, while fueling mass incarceration.

"Mandatory minimum penalties are unwise, unjust, and unfair.  The status quo is unacceptable and we need to take a hard look at reforming these penalties....

"For far too long, we have treated marijuana as a criminal justice problem instead of as a matter of personal choice and public health. Whatever one’s views are on the use of marijuana for recreational or medicinal use, the use of arrests, prosecution, and incarceration at the federal level has been both costly and biased.

"I have long believed that the criminalization of marijuana has been a mistake, and the racially disparate enforcement of marijuana laws has only compounded this mistake, with serious consequences, particularly for minority communities.

"Thousands of individuals — overwhelmingly people of color — have been subjected by the federal government, to unjust and lengthy prison sentences for marijuana offenses. This needs to stop.

"That is why I will be reintroducing the MORE Act to remove marijuana from the Controlled Substances Act and to provide restorative justice for communities that have been disproportionally impacted by the War on Drugs.

"We also need to learn lessons from programs and alternatives that have been successfully pursued at the state and local level, not just with marijuana but with other drugs as well.  For instance, Law Enforcement Assisted Diversion Programs, known as LEAD, allow law enforcement to divert appropriate arrestees from criminal court, and instead to provide treatment and other services that address addiction and reduce recidivism.

"Developed and initially implemented in Seattle, the LEAD approach is now being used with success in other areas.  We should support these efforts, as well as other innovative approaches at the local level, such as medication assisted treatment, supervised injection facilities, expanding the availability of overdose reversal drugs, and better education of doctors and the public about the proper prescription and use of opioids as pain medication.

"We will not be able to arrest and incarcerate our way out of a drug abuse crisis that has many causes.  Instead, we must support the development and implementation of a variety of solutions as we consider our contribution to addressing this crisis. Additional reform is long overdue...."

March 11, 2021 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Wednesday, March 03, 2021

"Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions"

The title of this post is the title of this notable new article authored by Michael Sousa ow available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.

March 3, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Friday, February 26, 2021

Split Washington Supreme Court rules state’s strict liability felony drug possession law violates due process

The Washington Supreme Court issued an interesting split decision yesterday concerning the state's drug possession law.  Here is how the majority opinion in Washington v. Blake, No. 96873-0 (Wash. Feb. 25, 2021) (available here), gets started and a few key passages:

Washington’s strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.  This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power?  The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power....

The question before us today is whether unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize.  Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.

To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct.  States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated.  The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes.

But the possession statute at issue here does far more than regulate drugs.  It is unique in the nation in criminalizing entirely innocent, unknowing possession.

February 26, 2021 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, February 25, 2021

"What If We Pay People to Stop Using Drugs?"

The question in the title of this post is the headline of this New Republic piece by Zachary Siegel.  Its subheadline captures its themes: "Traditional treatments often take place in expensive facilities, demand total abstinence, and rely on punitive methods of control.  A harm reduction model turns all of that on its head."  Here is an excerpt (with links from the original):

In contingency management programs, a positive urine screen does not result in punishment the way it might in other treatment programs, especially when those are court mandated and using drugs can result in jail time.  The only negative reinforcement in contingency management is that a positive urine screen means the reward cycle resets, along with the bonus count.  You have to start over. 

“People can come high,” Mike Discepola, vice president of behavioral and substance use health at the San Francisco AIDS Foundation, said.  The whole idea of the program is to match a participant’s interest with their ability, Discepola explained.  If someone is continually testing positive for stimulants, then treatment, counseling, and care are still available to them.  If a participant tests positive, they’re encouraged to discuss why they used, and counselors try to motivate them to keep showing up and try again.  No one gets turned away, and no one gets punished for using again.

But that’s exactly what conventional treatment, and the legal system, does.  People who use drugs are often given an ultimatum to either comply with an abstinence-focused treatment program or go to jail.  In Pennsylvania, one type of probation called “addict supervision” runs on a strict zero-tolerance approach where if participants test positive for drugs, or even miss a drug test, they’re detained and potentially given an even harsher sentence than the one they are hoping to avoid by agreeing to supervision in the first place.  All this, mind you, for low-level drug arrests and minor offenses.  Federal data from 2012 shows that 44 percent of men aged 19 to 49 who are on probation or parole could benefit from addiction treatment, but just over one-quarter actually get it.  Even when they do, it’s hard to know if that treatment is truly grounded in compassionate health care or just punishment by another name....

Providing financial incentives is a common practice in health care and most of our regular lives.  Employers offer their workers gym memberships and Fitbits to encourage certain behavior.  If you’ve ever used points earned on a credit card or accumulated miles from traveling, that’s an incentive, too....

Prevailing stigmas and stereotypes label people who use drugs as selfish, irresponsible, and criminal.  Why pay them money? Aren’t they just going to buy more drugs?  Attitudes against “coddling” people who use drugs are often deployed to prevent effective harm reduction interventions from being implemented.  Rod Rosenstein, Trump’s former deputy attorney general, argued against supervised consumption sites in The New York Times, saying the goal was to “fight drug abuse, not subsidize it.”  

February 25, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

"Merrick Garland, cannabis policy, and restorative justice"

The title of this post is the title of this notable new commentary from John Hudak over at Brookings FixGov blog.  I recommend the piece in full, and here are excerpts:

Judge Garland recognized two realities about cannabis enforcement — one not new to AG nominees, the other quite new.  First, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources.  There are plenty of other crimes that the Justice Department should be focused on.  Second, he noted that cannabis law enforcement disproportionately impacts communities of color, and more importantly, that the effects of those arrests impact individuals’ economic potential and livelihoods.

The latter is a stark departure for top-level presidential appointees.  Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one.  Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system.  It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty....

Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders.  By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.

The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities.  The attorney general can work with groups to improve the manner in which law enforcement and state and local leadership address both the way in which cannabis enforcement operates in the future and how to make up for past harms.

And last but not least, the Justice Department could lead the way on restorative justice, primarily through clemency.  However, presidential clemency efforts for cannabis will have limited impact, given how few individuals face such charges at the federal level.  Given this the attorney general can encourage the use of presidential and state-level clemency powers.  He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others.  That proposal urges President Biden to pardon non-violent cannabis offenders.  That recommendation is an important one that will signal the new president’s views on drug policy and demonstrate a change in his approach to law enforcement policy since the 1990s.  It will also honor his commitment during the Democratic debates that cannabis users should not face jail time.

The attorney general and President Biden should seek to coordinate with like-minded governors of both parties to exercise far-reaching pardon powers to the victims of the War on Drugs.  A Rose Garden ceremony to exercise presidential pardon power, while virtually assembling a bipartisan group of governors doing the same would be a substantively impactful effort that would improve the lives of hundreds of thousands of Americans, far beyond what the president can do alone.

Taking a first step toward restorative justice is important given the racist roots and implementation of the War on Drugs.

February 25, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, February 22, 2021

"Teaching Drugs: Incorporating Drug Policy into Law School Curriculum (2020-21 Curriculum Survey Update)"

The title of this post is the title of this great new updated report authored by multiple researchers with The Ohio State University's Drug Enforcement and Policy Center (DEPC) now available via SSRN.  This document is an updated version of a great prior report with the same title, and both reports are the product of the collective great work of many DEPC folks with input from many legal academics and staff. Here is the abstract for this latest version of this report:

Despite the significant impact of laws and policies surrounding controlled substances, few classes in the typical law school curriculum focus on either basic legal doctrines or broader scholarship in this field.  This gap in law school curricula is especially problematic given the shifts in the landscapes of legalized cannabis and hemp, as well as the range of legal and policy responses to the recent opioid crisis.  To continue our efforts to better understand how law schools currently approach these issues and to identify how drug policy and law could be better incorporated into law school curricula, we conducted a third survey of all accredited law schools in the U.S.  The 2020-21 survey followed two previous annual surveys and a workshop of legal scholars who work in this space.  The surveys and 2019 workshop were designed to identify law school courses currently taught and the primary obstacles to teaching this subject matter.  The results show that the vast majority of law schools do not teach courses touching on drugs or the evolving legal structures around cannabis, and this is true even for law schools located in states with legalized cannabis markets.

February 22, 2021 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, February 18, 2021

DEPC event on "Criminal Justice Reform in Ohio" and original resources on "Drug Sentencing Reform in Ohio"

SB3-Panel_for-socialI am very excited that next week the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law is hosting a virtual panel discussion, titled "Where Do We Go From Here?: Criminal Justice Reform in Ohio" at 2pm on February 24, 2021.  Here is the description and run down of the exciting event:

Ohio has a long history of criminal justice reform and drug sentencing reform, and yet few can be pleased that Ohio still has the 12th highest incarceration rate in the country and one of the highest rates of overdose deaths. With the passage of HB1 and the failure of SB3 at the end of 2020, many are left wondering what can and cannot be achieved through legislative reforms in Ohio.  Please join us for a discussion of Ohio’s recent reform history, what we might expect in the near future, and how research and experience in other states can inform reform efforts in the Buckeye State.

Panelists

Speakers:
Sara Andrews, executive director of the Ohio Criminal Sentencing Commission
Gary Daniels, chief lobbyist at the ACLU of Ohio
Micah Derry, state director for the Ohio chapter of Americans for Prosperity
Andrew Geisler, legal fellow at The Buckeye Institute
Kyle Strickland, deputy director of race and democracy at the Roosevelt Institute and senior legal analyst at Kirwan Institute for the Study of Race and Ethnicity

Moderator:
Douglas A. Berman, executive director of the Drug Enforcement and Policy Center

I am also quite pleased to note that the link in the above description takes folks to this original resource page titled "Drug Sentencing Reform in Ohio."  Here is some of the discussion and resources to be found at that page:

Since 2014, seven states have enacted reforms that have defelonized low-level drug offenses: Alaska, California, Colorado, Connecticut Oklahoma, Oregon, and Utah.  In late 2020, the Ohio House of Representatives opted not to join this growing list by declining a vote on Senate Bill 3 which sought to reclassify some low-level drug offenses from felonies to misdemeanors.  Its origins can be traced back to the ambitious, but ultimately failed, 2018 Issue 1 ballot initiative.  The constitutional amendment initiative included language aimed at reclassifying as misdemeanors those offenses related to drug possession and use, prohibiting courts from sending people back to prison for non-criminal probation violation, and reallocating savings created from lowering prison populations toward drug treatment services.  Like SB3, Issue 1 was vehemently opposed by judges and prosecutors around the state.

Though SB3 stalled, an array of other criminal justice reforms were enacted in the last General Assembly of 2020, including House Bill 1.  HB1 allows more wrongdoers to potentially benefit from alternative dispositions and record sealing. Some argued that the passage of HB1 addressed sufficiently some of the concerns driving support for SB3....

In addition to organizing [the Feb 24 panel] event, DEPC has gathered a variety of other resources to aid in understanding the complex evolution of criminal justice and drug sentencing reforms in Ohio, including a visualization of Ohio incarceration rates and a timeline of Ohio reforms since 2010.  Please see below for commentaries and writings on current and past drug sentencing reform efforts in Ohio, DEPC’s prior events focused on Ohio’s criminal justice reforms, and research aimed at answering some of the most important questions raised by proponents and opponents alike.

February 18, 2021 in Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Tuesday, February 16, 2021

Drug Policy Alliance launches "Uprooting the Drug War" to highlight myriad harms of drug criminalization

As detailed in this press release, "the Drug Policy Alliance announced the launch of a major new initiative — Uprooting the Drug War — with the release of a series of reports and interactive website that aim to expose the impact of the war on drugs beyond arrest and incarceration."  Here is more on this important effirt:

The project is designed to engage activists across sectors and issues in understanding and dismantling the ways in which the war on drugs has infiltrated and shaped many other systems people encounter in their daily lives — including education, employment, housing, child welfare, immigration, and public benefits.... 
 
The goal of the new initiative — a natural extension of DPA’s decriminalization advocacy work — is to collaborate with aligned movements and legislators through meetings, webinars, convenings, and organizing to explore the ways the drug war has infected the systems and institutions that are at the core of their policy advocacy and create momentum for concrete policy proposals that begin to end the drug war in all its forms.
 
The project, which lives at UprootingtheDrugWar.com, includes analysis of six different systems through first-hand stories, data spotlights, and reports that take a deep dive into how drug war policies have taken root and created grave harm in the fields of education, employment, housing, child welfare, immigration, and public benefits.  Each report explores the history of how the drug war is waged (or enforced) in each system, as well as the underlying assumptions of drug war policies, through an examination of federal and New York state law.  In addition to the reports, six ‘Snapshots’ provide a brief overview of how drug war punishment and logic show up in these systems at a national level and make policy recommendations that would begin to extract the drug war from these systems.  Finally, the site offers six ‘Advocacy Assessment Tools,’ which give partners and legislators the opportunity to evaluate drug war policies and practices in their own community so they can take action to uproot the drug war locally.

February 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Sunday, February 14, 2021

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

6a00d83451574769e2025d9b40d8aa200c-320wiI have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

February 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, February 12, 2021

Reminder of next week's "Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

OSJCL-Symposium_College-graphic-768x509I flagged a few weeks ago this great symposium taking place (on Zoom) next Friday, February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event. Registration for this event is now available at this link, and here is how the event is described and organized:

The Ohio State Journal of Criminal Law, in collaboration with the Drug Enforcement and Policy Center, is pleased to announce our live symposium for Spring 2021, “Prosecutorial Elections: The New Frontline in Criminal Justice Reform.”  This virtual series is aimed at provoking thoughtful and well-rounded discussion surrounding the responsibility of the modern prosecutor in ushering in criminal justice reform and how that responsibility intersects with their role to uphold the law.  The panelists, including both academics and practitioners, will explore these questions from a variety of perspectives.  A schedule for the symposium can be found below.

Schedule:

10:15 a.m.-10:30 a.m.: Opening Remarks and Introduction

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

12:00 p.m.-1:30 p.m.Lunch break

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

3:30 p.m.-5:00 p.m.:Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

5:00 p.m.: Closing remarks

A list of the speakers and their biographies can be found here.

February 12, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, February 07, 2021

Reviewing notable criminal justice reform developments in (red) Ohio

I have long talked up criminal justice developments in Ohio because the state has long been a considered a bellwether for national developments.  But thanks to gerrymandering of state legislative district and other recent developments, Ohio is perhaps now more properly viewed as a red state.  Stiil, the political reality that Ohio's General Assembly is now GOP-heavy arguably make recent progessive criminal justice reforms in the Buckeye state even more noteworthy.  This new local article, headlined "Ohio makes big leaps forward on criminal justice changes," effectively reports on recent significant legislative action in this area, and here are excerpts:

Advocates for criminal justice reforms scored multiple wins in the closing weeks of 2020 that they say will give thousands of Ohioans a second chance.  Gov. Mike DeWine signed half a dozen bills into laws that will take effect later this year. The potential impacts are sweeping.

Incarcerated pregnant women will no longer be shackled to hospital beds as they deliver their babies.  Poor people will be able to perform community service as a way to get their driver’s licenses back instead of paying huge fees.  Ohioans who made mistakes will have an easier time getting professional licenses to advance their careers.  People suffering from serious mental illnesses at the time of the crime will not be executed. Teens who commit terrible crimes will serve their time but will still have the hope of making parole someday. 

And House Bill 1 will allow Ohioans in the throes of addiction to get drug treatment instead of a criminal record.  DeWine called House Bill 1 the most significant among the recent criminal justice reforms.  “There is a broad consensus in this country that people who commit crimes — non-violent offenses — because of the fact that they’re an addict, we all want to see them succeed.  We want them to get clean, stay clean and be good members of society,” said DeWine, a former Greene County prosecutor and state attorney general.  “There is a broad consensus that if they can get clean and on a pathway, we don’t want to tag them with a felony conviction. So this makes sense.”...

Support for HB1 came from the right and left — Ohio Supreme Court Chief Justice Maureen O’Connor, ACLU of Ohio, the conservative Buckeye Institute, public defenders and prosecutors.  Other bills signed into law by DeWine will reduce the “collateral sanctions” — additional punishments that were popular with tough-on-crime lawmakers over the past several decades.  Such sanctions made it more difficult to get professional licensing, housing, student financial aid, driver’s licenses and more.  “Again, we have a broad consensus that we shouldn’t be having those.  Once a person has served their time or served their probation, probably they should be able to move on with their lives,” DeWine said....

Additional reform efforts in 2021 will likely focus on Ohio’s cash bail system, the death penalty, knocking down the number of collateral sanctions people face when they’re convicted, holding the Ohio Parole Board accountable and pushing for criminal drug sentencing changes, said [Kevin] Werner of the Ohio Justice and Policy Center.

Also, while several criminal justice bills made it across the finish line, a comprehensive package of changes in Senate Bill 3 failed to win final approval.  SB3 called for reducing certain felony drug offenses to misdemeanors.  Shakyra Diaz, state director of the Alliance for Safety and Justice, which lobbied for SB3, said Ohio families still need solutions to the addiction crisis and the alliance will continue to work with lawmakers.  “Giving felony convictions to Ohioans with addictions only makes the problem worse, and inaction is not an option as more families lose loved ones to addiction and overdoses because they needlessly cycle through the criminal justice system without getting treatment,” Diaz said.

February 7, 2021 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, February 06, 2021

Notable new research on criminal justice impact of a safe consumption site

Policies and attitudes toward so-called "safe consumption sites" for drugs may serve as one of many interesting tests for whether the Biden Administration is prepared to take a whole new approach to the drug war.  If inclined to be more supportive of these sites, the Biden folks might want to make much of this notable new research recently published in the journal Drug and Alcohol Dependence.  Produced by multiple authors under the title "Impact of an unsanctioned safe consumption site on criminal activity, 2010–2019," here is the article's abstract:

Background

Health and social impacts of safe consumption sites (SCS) are well described in multiple countries.  One argument used by those opposed to SCS in the US is that findings from other countries are not relevant to the US context.  We examined whether an unsanctioned SCS operating in the US affected local crime rates.

Methods

Controlled interrupted time series (ITS) analysis of police incident reports for five years before and five years after SCS opening, comparing one intervention and two control areas in one city.

Results

Narcotic/drug incidents declined across the pre- and post-intervention periods in the intervention area and remained constant in both control areas, preventing an ITS analysis but suggesting no negative impact.  On average, incident reports relating to assault, burglary, larceny theft, and robbery in the post-intervention period steadily decreased at a similar rate within both the Intervention area and Control area 1.  However the change in rate of decline post-intervention was statistically significantly greater in the Intervention area compared to Control area 1 (difference in slope -0.007 SDs, 95 % CI: −0.013, −0.002; p = 0.01).  The Intervention area had a statistically significant decline in crime over the post-intervention period compared to Control area 2 (difference in slope −0.023 SDs, 95 % CI: −0.03, −0.01; p < 0.001).

Conclusions

Documented criminal activity decreased rather than increased in the area around an unsanctioned SCS located in the US in the five years following SCS opening.

February 6, 2021 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (0)

Thursday, January 28, 2021

New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses

As detailed in this press relase from Senator Cory Booker's office, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL), both members of the Senate Judiciary Committee, announced legislation that will finally eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced."  Here is more:

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses vastly differed. For instance, until 2010, someone caught distributing 5 grams of crack cocaine served the same 5-year prison sentence as someone caught distributing 500 grams of powder cocaine. Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color.

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the sentencing disparity from 100:1 to 18:1....  The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law.

And FAMM has this press release highlighting advocates support for this effort to remedy a long-standing and ugly federal sentencing injustice.  Here are excerpts:

FAMM and Prison Fellowship have teamed up to launch the #EndTheDisparity Campaign to urge Congress to eliminate the disparity between crack and powder cocaine-related sentences. Both organizations are circulating petitions and are planning a series of activities to build public support for reform.

“We have been fighting to repeal unjust sentencing laws for 30 years, and we’ve seen no greater injustice than the crack-powder disparity,” said FAMM President Kevin Ring. “We were glad Congress reduced the disparity in 2010, but it’s time to finish the job. We must remove this racially discriminatory scheme from the criminal code.”

In 2010, an overwhelming bipartisan majority in Congress passed and President Barack Obama signed the Fair Sentencing Act, which reduced the crack-powder disparity from 100:1 to 18:1. Lawmakers acknowledged that the arguments for the original disparity had been proven incorrect; crack cocaine is no more addictive than powder and is not more likely to cause violent crime.

“The unequal treatment of crack and powder cocaine offenses is among the most glaring examples of racial discrimination in the criminal justice system,” said Heather Rice-Minus, Senior Vice President of Advocacy and Church Mobilization for Prison Fellowship. “There is no sound scientific reason to punish powder and cocaine offenses differently and more importantly, there is a moral imperative to repent from this injustice.”

Uncontroverted was the fact that lengthy mandatory minimum prison terms for crack offenses disproportionately harmed Black people.  Crack usage rates did not differ greatly between white and Black Americans, but more than 80% of federal crack convictions involved Black defendants.

While the Fair Sentencing Act greatly reduced the number of people subject to the mandatory minimum sentences for crack, Black people still make up more than 80 percent of federal crack convictions....

For more information and background on the disparity and campaign see the resources below:

January 28, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (0)

Monday, January 25, 2021

US Sentencing Commission publishes report on "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."

The United States Sentencing Commission, despite its status as an incomplete agency due to the absence of confirmed commissioners for years, keeps churning out notable data reports.  Today brings this notable new publication, clocking in at 60 pages, titled "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."  Here is this report's "Key Findings" from this USSC webpage:

January 25, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Thursday, January 21, 2021

"Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

Thumbnail_image001The title of this post is the title of this great symposium taking place (on Zoom) on February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event.  This link provides a registration form, and here is schedule for the symposium:

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

  • Moderated by:
    • Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Maybell Romero, Associate Professor of Law at Northern Illinois University College of Law
    • Ronald Wright, Associate Dean for Research and Academic Programs and Needham Yancey Gulley Professor of Criminal Law at Wake Forest University School of Law
    • Carissa Byrne Hessick, Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law
    • Miriam Krinsky, Executive Director of Fair and Just Prosecution

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

  • Moderated by:
    • Amna Akbar, Associate Professor of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Angela J. Davis, Distinguished Professor of Law at American University Washington College of Law
    • Tamara Lawson, Dean and Professor of Law at St. Thomas University School of Law
    • Roger A. Fairfax, Jr., Patricia Roberts Harris Research Professor of Law and Founding Director of the Criminal Law and Policy Initiative at The George Washington University Law School
    • Olwyn Conway, Assistant Clinical Professor of Law at The Ohio State University Moritz College of Law

3:30 p.m.-5:00 p.m.: Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

  • Moderated by:
    • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law
  • Panelists:
    • Marilyn J. Mosby, Baltimore City State’s Attorney
    • Kay L. Levine, Professor of Law at Emory University School of Law
    • Alex Kreit, Director of the Center for Addiction Law & Policy and Assistant Professor of Law at Northern Kentucky University Chase College of Law

January 21, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, January 12, 2021

Split Third Circuit panel declares that planned safe injection site would be in violation of federal law

As noted in this post from 15 months ago, a federal district judge ruled a Philadelphia nonprofit group's plan to open a sef injection site would not violate the Controlled Substances Act. But, as reported in this local press piece, headlined "A federal court rejected the plan for a supervised injection site in Philly," a Third Circuit panel has now reversed this ruling. Here is the start of the majority opinion in US v. Safehouse, No. 20-1422 (3d Cir. Jan. 12, 2021) (available here):

Though the opioid crisis may call for innovative solutions, local innovations may not break federal law.  Drug users die every day of overdoses.  So Safehouse, a nonprofit, wants to open America’s first safe-injection site in Philadelphia.  It favors a public-health response to drug addiction, with medical staff trained to observe drug use, counteract overdoses, and offer treatment.  Its motives are admirable. But Congress has made it a crime to open a property to others to use drugs.  21 U.S.C. §856.  And that is what Safehouse will do.

Because Safehouse knows and intends that its visitors will come with a significant purpose of doing drugs, its safeinjection site will break the law.  Although Congress passed §856 to shut down crack houses, its words reach well beyond them. Safehouse’s benevolent motive makes no difference.  And even though this drug use will happen locally and Safehouse will welcome visitors for free, its safe-injection site falls within Congress’s power to ban interstate commerce in drugs.

Safehouse admirably seeks to save lives.  And many Americans think that federal drug laws should move away from law enforcement toward harm reduction.  But courts are not arbiters of policy. We must apply the laws as written.  If the laws are unwise, Safehouse and its supporters can lobby Congress to 11 carve out an exception.  Because we cannot do that, we will reverse and remand.

The dissenting opinion authored by Judge Roth starts this way:

The Majority’s decision is sui generis: It concludes that 8 U.S.C. § 856(a)(2) — unlike § 856(a)(1) or any other federal criminal statute — criminalizes otherwise innocent conduct, based solely on the “purpose” of a third party who is neither named nor described in the statute.  The text of section 856(a)(2) cannot support this novel construction.  Moreover, even if Safehouse’s “purpose” were the relevant standard, Safehouse does not have the requisite purpose.  For these reasons, I respectfully dissent.

It will be interesting to see if Safehouse seeks en banc review and/or certiorari.  It will also be interesting to see if the Justice Department under the Biden Administration might have a different view on safe injections sites than the Trump Administration.

January 12, 2021 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (3)

Sunday, January 10, 2021

"Racial Justice Requires Ending the War on Drugs"

The title of this post is the title of this new article authored by Brian Earp, Jonathan Lewis and Carl Hart along with with Bioethicists and Allied Professionals for Drug Policy Reform  in the American Journal of Bioethics. Here is its abstract:

Historically, laws and policies to criminalize drug use or possession were rooted in explicit racism, and they continue to wreak havoc on certain racialized communities.  We are a group of bioethicists, drug experts, legal scholars, criminal justice researchers, sociologists, psychologists, and other allied professionals who have come together in support of a policy proposal that is evidence-based and ethically recommended.  We call for the immediate decriminalization of all so-called recreational drugs and, ultimately, for their timely and appropriate legal regulation.  We also call for criminal convictions for nonviolent offenses pertaining to the use or possession of small quantities of such drugs to be expunged, and for those currently serving time for these offenses to be released.  In effect, we call for an end to the “war on drugs.”

January 10, 2021 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, January 09, 2021

SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences

The Supreme Court last night issued this order list which grants review in 14 new cases that will be heard later this SCOTUS Term.  Four of the cases involve criminal issues, and one is a sentencing case concerning the reach and application of the FIRST STEP Act's provisions making the reduced crack sentences of the Fair Sentencing Act retroactive.  This SCOTUSblog post has a lot more about the sentencing case and a brief review of the others:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive.  The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

  • Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation....
  • United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction....
  • United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

January 9, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, December 20, 2020

Read papers from "The Controlled Substances Act at 50 Years" in the latest issue of the Ohio State Journal of Criminal Law

EphuZAlXYAEwllCThough 2020 has been a rough year, I still feel fortunate that the last big in-person event I attended was this amazing conference, "The Controlled Substances Act at 50 Years," which was hosted in February 2020 by the Arizona State University Sandra Day O’Connor College of Law and put together by the amazing team at The Ohio State University's Drug Enforcement and Policy Center and ASU's Academy for Justice.  This terrific conference is on my mind now because the terrific Ohio State Journal of Criminal Law has recently published its Fall 2020 issue which includes these nine terrific papers from the conference:

The Tools at Hand: Surveillance Innovations and the Shifting Role of Federal Law Enforcement in Drug Control by Anne E. Boustead

Mandatory Minimum Entrenchment and the Controlled Substances Act by Stephanie Holmes Didwania

Preemption Up in Smoke: Should States Be Allowed a Voice in Scheduling Under the Controlled Substances Act? by Oliver J. Kim

Reconsidering Federal Marijuana Regulation by Paul J. Larkin Jr.

The Bureaucratic Afterlife of the Controlled Substances Act by Lauren M. Ouziel

Goodbye Marijuana Schedule 1 — Welcome to a Post-Legalization World by Melanie Reid

The Complex Interplay Between the Controlled Substances Act and the Gun Control Act by Dru Stevenson

Making Drug-Related Deportability 1914 Again? How a Strict “Categorical Approach” to the CSA Would Eliminate Unpredictable Agency Interpretation of the Immigration and Nationality Act by Michael S. Vastine

The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction by Erica Zunkel & Alison Siegler

December 20, 2020 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Friday, December 18, 2020

Bipartisan drug sentencing reform in Ohio thwarted by opposition from prosecutors (and former prosecutors)

As well reported in this local article, headlined "Ohio lawmakers pass one criminal justice measure, but a second, broader bill appears to be dead," a long-running effort to reform drug sentencing in Ohio failed to get completely to the finish line in the state General Assembly.  Here are the details:

The Ohio Senate passed a bill Thursday evening that urges more drug treatment and makes it easier for people to have their criminal records sealed.

But a broader criminal justice reform measure that reclassifies many smaller-level drug possession felonies to misdemeanors and requires addicts get treatment looks like it will die in these final days of the 133rd Ohio General Assembly....

“Barring a miracle, I believe it’s dead,” said the Buckeye Institute’s Greg Lawson. “Everything I’ve heard is it’s not coming to the floor.”

A large coalition that includes dozens of organizations across the ideological spectrum — from the conservative Buckeye Institute and the Ohio chapter of Americans for Prosperity to the progressive American Civil Liberties Union of Ohio and Faith in Public Life — was pushing for both bills to pass. Advocates are disappointed that SB 3 appears to have failed....

SB 3 had powerful detractors in prosecutors and judges — including Ohio Chief Justice Maureen O’Connor — who felt the bill would strip judges of discretion, would neutralize the tools that drug courts can use to nudge people through rehabilitation, and would remove an incentive to overcome addiction if there was no threat of a felony conviction.

Gov. Mike DeWine, a former Ohio attorney general and county prosecutor, has said he opposed the bill.

What that ignores, argued Micah Derry, AFP Ohio director, is that felonies follow people for the rest of their lives, even when someone does recover from addiction.  These days, with the power of data mining on the Internet, sealing a record may not shut the books on one’s past.  Many companies that specialize in employment background checks can still find past crimes, thanks to capturing and saving data over time.  “There’s not a single county prosecutor who is a person of color,” Derry said. “Not to get too racial about it, but there’s a reason why people of color have the books thrown at them more than other people.”

Earlier on Thursday, Harm Reduction Ohio, the largest distributor of naloxone in the state, reported drug overdose deaths were high in 2020, with many counties reporting records for the year — especially in Central Ohio and the Appalachian part of the state.  Final data for the year isn’t expected until mid-2021 from the Ohio Department of Health.

The crux of SB 3, mandatory treatment for addicts and reclassification of many felonies to misdemeanors, will unlikely be resurrected next year, said ACLU of Ohio’s Chief Lobbyist Gary Daniels. DeWine will still be in office.  So will Ohio House Speaker Bob Cupp, a former Ohio Supreme Court justice who hasn’t brought it to a floor vote.

Especially because I know many folks who have worked so very hard for years to advance SB3, it is really disappointing that House Speaker Cupp (a former local prosecutor) would not allow a floor vote even after the bll earned committee approval.  I sense that SB3 would have passed in the Ohio House if given a floor vote, and I suspect Gov DeWine (a former local prosecutor) might have ultimately been convinced to sign the bill or allow it to become law.  Especially because House Speaker Cupp perviously served on the Ohio Supreme Court, I wonder if the consistent SB3 opposition of Chief Justice O'Conner (a former local prosecutor) contributed to his unwillingness to even allow this bill to get a vote.

Among other stories, this sad legislative tale serves as yet another reminder of how hard it will be to even slightly revamp the war on drugs no matter how clear its failures are (as well documented by Harm Reduction Ohio).  SB3 did not decriminalize anything (and I believe it increased sentences for hgh-level trafficking); the bill simply sought to reclassify the lowest level drug-possession offenses from felonies to misdemeanors.  But after two years of very hard work by effective advocates on both sides of the aisle, prosecutors and former prosecutors were able to keep this modest reform from even getting a full and fair vote in the Ohio General Assembly.  Sigh.

December 18, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, November 22, 2020

"Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze"

The titl of this post is the title of this notable new article available via SSRN and authored by Michael Sousa. Here is its abstract:

Drug treatment courts represent a paradigm shift in the American criminal justice system.  By focusing on providing drug treatment services to low-level offenders with severe use disorders rather than sentencing them to a term of incarceration, drug courts represent a return to a more rehabilitative model for dealing with individuals ensnared by the criminal justice system and away from the retributive model that dictated punishment in the latter half of the twentieth century.  The existing scholarship exploring how drug treatment courts function has been largely atheoretical, and past attempts to harmonize theory to drug treatment courts fail to demonstrate how these institutions normalize offenders prior to reintegration into society.  Relying on Michel Foucault’s notion of governmentality together with his concepts of “technologies of power” and “technologies of the self,” I develop the analytical framework of “therapeutic discipline” as a more robust lens through which to understand the operation of drug treatment courts nationwide.  My contribution of “therapeutic discipline” to the existing literature is bolstered by representative examples of qualitative data taken from a long-term, ethnographic study of one adult drug treatment court.

November 22, 2020 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 19, 2020

Further reflections on reform after "war on drugs" loses big in 2020 election

Rightly so, folks are still chatting about the meaning and impact of the election results ushering significant drug reforms.  Here are some of many pieces covering this interesting ground:

November 19, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States | Permalink | Comments (0)

Tuesday, November 10, 2020

"Drug Policy Implications: Elections 2020"

Drug-Policy-Implications-Elections-2020_for-web-email2The title of this post is the title of this panel discussion taking place (on Zoom) next Monday afternoon, November 16, 2020 from 1-2:15 pm EST, sponsored by the Drug Enforcement and Policy Center.  Here is the basic description of the event and the planned speakers:

The 2020 election will have a monumental impact on how the United States addresses a broad range of policy issues, and drug enforcement and policy is no exception.  Numerous states approved medical or full marijuana legalization via ballot initiative, and voters in other states weighted in on drug-related criminal justice ballot initiatives.  At the federal level, marijuana reform has been gaining momentum and federal officials will undoubtedly take cues from the nationwide election results to determine the pace of reform on an array of drug enforcement and policy issues.

Join our panel of experts for a post-election discussion of the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Speakers

  • John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies, Brookings Institution
  • Maritza Perez, director of the Office of National Affairs, Drug Policy Alliance
  • Tamar Todd, legal director, New Approach PAC

Moderated by:

Douglas A. Berman, executive director, Drug Enforcement and Policy Center

November 10, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Noticing marijuana reform as criminal justice reform in Arizona after passage of Prop 207

Regular readers, particularly those who also keep up with my work over at Marijuana Law, Policy & Reform, know that I strongly believe that marijuana reform can and should always be a form of criminal justice reform.  This local article, headlined "Prop 207 could have huge impact on criminal justice reform in Arizona," details part of this story in one state one week after its big reform vote:

We are learning more about how Proposition 207 will impact our criminal justice system. The proposition legalizes recreational marijuana in Arizona and will become official when election results are certified in about a month.

Steven Scharboneau, Jr. is an attorney with the Rosenstein Law Group. “Arizona is one of the only states where a drug conviction for marijuana is a felony conviction, so it has life-lasting implications," Scharboneau said....

Adam Trenk is a Rose Law Group partner and director of the firm’s cannabis law department. “I think it’s really a big deal and a really big step for our state," Trenk said. Trenk said Prop 207 is really the first of its kind. “Historically we would, we being the state’s court systems, would seal records, but they wouldn’t necessarily expunge records," Trenk said.

Starting July 12, 2021, people previously convicted of select marijuana offenses can petition to have their records expunged. Essentially, this will give people a clean slate, which is what Scharboneau said his work is all about. “If we really work hard to make the laws more fair so people can actually have a fair chance at that second chance," Scharboneau said....

Rebecca Fealk, the Legislative Policy Coordinator there, said the group is working to get the word out about this measure and the impact it will have on criminal justice reform. “If somebody had a marijuana conviction, they were often denied food stamps, they were denied Pell Grants to be able go to college and do these things that allowed them to be part of our community," she said. “And so by having the opportunity to remove those, we are allowing people to be more successful and remove the harm the criminal justice system has done."

I believe that the Montana marijuana legalization ballot initiative also included some remedial criminal justice provisions, but that such reforms will require follow-up legislative action in other states.  Still, I sense there is continuing and growing momentum in marijuana reform quarters to ensure any and all reforms come with remedial provisions.  When I wrote an article on this topic a few years ago, "Leveraging Marijuana Reform to Enhance Expungement Practices," I was eager to see these intersecting issues get more attention, and I am now quite happy that they are.

UPDATE: I just saw this official press release from yesterday that details an immediate and tangible criminal justice impact from the passage of Prop 207 in Arizona. The release is titled "MCAO to Dismiss All Pending and Unfiled Charges of Possession of Marijuana," and here is the full text:

With the passage of Proposition 207, the Maricopa County Attorney’s Office (MCAO) will be dismissing all pending and unfiled charges of possession of marijuana and any associated paraphernalia charges that are before this office. Instead of continuing to spend resources on these cases, this office will begin implementing the will of the voters immediately.

We are instructing Deputy County Attorneys to file a motion to dismiss any charge covered by Proposition 207. If those charges make up the entirety of the charges of the case, the entire case will be dismissed. If there are other felony charges the case will remain pending, but we will file motions to dismiss the charges covered by Proposition 207. This will include all cases pending in Early Disposition Court, those currently in diversion or pending trial, and those set for sentencing or probation violation hearings.

Priority will be given to cases with court dates and those in custody. The office will also be filing motions to dismiss bench warrant cases where all the charges are covered by Proposition 207.

November 10, 2020 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Sunday, November 08, 2020

Pondering marijuana reform echoes after another historic election cycle

I briefly flagged here a few days ago the remarkable success of drug policy reform ballot initiatives in red and blue states nationwide.  And the success particularly of marijuana reform initatives in Arizona, Mississippi. Montana, New Jersey, and South Dakota has me thinking and writing a lot about what's next in this space over at Marijuana Law, Policy & Reform.  Specifically, I have been blogging reactions to marijuana's big election night via these new posts:

November 8, 2020 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Saturday, November 07, 2020

"Promoting Expungements to Minimize the Adverse Impact of Substance Use Disorder Criminalization"

The title of this post is the title of this notable new article authored by Brittany Kelly, John Heinz, Anthony Singer and Aila Hoss now available via SSRN.  Here is its abstract:

Research has already documented the irreparable harm of the criminalization of drugs.  In the United States, these policies have led to disproportionate rates of incarceration of black men, separated children from their parents in foster care and custody proceedings, and often left people unable to secure employment and housing.  Criminalization has also had harmful impacts from a public health perspective.  Substance use disorder is a medical condition with established criteria for diagnosis.  Criminalizing SUD instead of treating it often leaves people without access to treatment for their condition.  Criminalization of drug paraphernalia possession has also undermined the efficacy of public health strategies, such as overdose immunity laws and syringe service programs.

Many advocates and scholars across human rights, public health, and other disciplines argue that decriminalization and legalization of drugs is necessary.  While some states and localities have begun to decriminalize and legalize drugs, most do not.  And, in many jurisdictions, this would be unrealistic in the near future.  Indiana law, for example, makes possession of drug paraphernalia a misdemeanor offense.  The state legislature in fact elevated syringe possession to a felony in 2015.  What other legal strategies are available when decriminalization and legalization are not?

This article explores expungement as a tool in mitigating the harmful impacts of criminalizing substance use disorder.  It discusses the inadequacies of current criminal-based strategies for responding to the SUD crisis and the public health impacts of criminalization and describes expungement law generally and provides an in-depth summary of Indiana’s expungement laws.  Given the substantial nuances within expungement law, this article provides analysis on how they can be best structured to promote their use.  It argues that Indiana could implement a variety of strategies to promote expungement laws and thereby support individuals with substance use disorder.

November 7, 2020 in Collateral consequences, Drug Offense Sentencing | Permalink | Comments (0)

Thursday, November 05, 2020

An effective disquisition on the drug war's descent

This lengthy new New York Times article provides a thoughtful review of how diverse coalitions have now come together to start unwinding the war on drugs. The full title of this piece highlights its themes: "This Election, a Divided America Stands United on One Topic: All kinds of Americans have turned their back on the destructive war on drugs." I recommend the full piece, and here is how it starts and ends:

It can take a while to determine the victor in a presidential election.  But one winner was abundantly clear on Election Day. Drugs, once thought to be the scourge of a healthy society, are getting public recognition as a part of American life. Where drugs were on the ballot on Tuesday, they won handily.

New Jersey, South Dakota, Montana and Arizona joined 11 other states that had already legalized recreational marijuana. Mississippi and South Dakota made medical marijuana legal, bringing the total to 35.

The citizens of Washington, D.C., voted to decriminalize psilocybin, the organic compound active in psychedelic mushrooms. Oregon voters approved two drug-related initiatives. One decriminalized possession of small amounts of illegal drugs including heroin, cocaine and methamphetamines. (It did not make it legal to sell the drugs.) Another measure authorized the creation of a state program to license providers of psilocybin.

Election night represented a significant victory for three forces pushing for drug reform for different but interlocking reasons. There is the increasingly powerful cannabis industry. There are state governments struggling with budget shortfalls, hungry to fill coffers in the midst of a pandemic.

And then there are the reform advocates, who for decades have been saying that imprisonment, federal mandatory minimum sentences and prohibitive cash bail for drug charges ruin lives and communities, particularly those of Black Americans.

Decriminalization is popular, in part, because Americans believe that too many people are in jails and prisons, and also because Americans personally affected by the country’s continuing opioid crisis have been persuaded to see drugs as a public health issue....

If states are the laboratories of democracy, then, as Mr. Pollan put it, some of the measures passed on Tuesday will set up interesting experiments.  Neighboring states will watch as Montana and New Jersey create regional cannabis destinations to be envied, imitated or scorned; unlike some other states, Montana and New Jersey do not directly border states where marijuana is fully legal, so they could draw more customers from out of state (though it is illegal to bring marijuana into a state where it is criminal). 

And it’s not entirely clear that marijuana is always the fiscal boost its champions say it is, even as cannabis tourism has helped states like California and Colorado. A state assessment of the financial impact of legalization in Montana, for example, showed that the state expected significant revenue — as much as $48 million a year in 2025 — but that its implementation costs would be nearly as high.

Policy wonks will assess the performance of Oregon’s health authority as it creates its program to license psilocybin distributors, an unusual function for a state department of health regardless of the drug in question.  And Americans all over the country will note — warily or hopefully — what happens in Oregon, now that possession of all controlled substances has been decriminalized.

Adam Eidinger, an activist in Washington, D.C., who proposed the ballot measure that pushed to legalize marijuana there, was also the treasurer of the campaign to decriminalize psilocybin.  (The campaign operated out of his house in the Kalorama neighborhood, home to the Obamas and Jared Kushner and Ivanka Trump.)

Next year, Mr. Eidinger plans to campaign for an initiative in D.C. to decriminalize possession of all controlled substances, much like the one that passed in Oregon. “People want to end the drug war,” he said.

Mr. Sabet, the former White House drug policy adviser, did not expect the nation to follow in Oregon’s footsteps — at least not immediately. “I don’t know if I’d put my money on America wanting to legalize heroin tomorrow,” he said.

November 5, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, November 04, 2020

"Drugs Won Big During the U.S. Election"

The title of this post is the title of this Vice piece highlighting one clear pattern of clear winners during election 2020. Here are excerpts:

Despite the uncertainty over the outcome of the U.S. presidential race Wednesday morning, Mississippi cannabis advocate Natalie Jones Bonner was feeling “absolute joy.”  Jones Bonner, 59, was celebrating the passing of Initiative 65, a ballot measure that will establish a medical cannabis program in the state.

Mississippi is one of a handful of states to pass drug reform measures last night.  In a groundbreaking decision, Oregon voted to support Measure 110, which will decriminalize all drugs, including cocaine and heroin.  Oregon also voted to legalize access to psychedelic mushrooms for medicinal purposes.

Arizona, Montana, New Jersey, and South Dakota all voted to legalize cannabis for recreational purposes.  South Dakota additionally voted yes to establishing a medical cannabis regime. Voters in the District of Columbia passed a measure to decriminalize shrooms.

The outcomes are a boon for drug reform advocates and the cannabis industry, making the possibility of federal weed decriminalization more feasible.  Currently, 33 states allow medical cannabis and 11 have recreational regimes.  Several of the states that passed measures last night have historically been proponents of the war on drugs, with Black people disproportionately arrested for drug crimes....

Matt Sutton, spokesman for the Drug Policy Alliance, said the support of drug reform is crucial in the context of wider conversations around police brutality and the failings of the criminal justice system.  He said Oregon’s decriminalization measure could result in a 95 percent decrease in racial disparities in arrests, according to the Oregon Criminal Justice Commission.

Sutton said it’s “remarkable” that weed legalization would pass in states like Montana, which has the highest rate of racial disparities in weed arrests, and South Dakota, where 10 percent of all arrests are tied to cannabis.

Economic gains, particularly as the pandemic is draining state resources, are in part behind the bilateral support of cannabis reform.  Sutton said he expects New Jersey’s decision to legalize cannabis to light a fire under New York, which has stalled in setting up its legal recreational regime.

Over at Marijuana Law, Policy & Reform I have been blogging a few reactions to marijuana's big election night via these two new posts:

November 4, 2020 in Campaign 2020 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 (0)

Tuesday, November 03, 2020

Some places to watch for results on criminal justice ballot initiatives

Images (2)The folks at Vox have created this webpage which will help track "live results" from some of the criminal justice ballot initiatives that voters are considering today around the country. Here is the set up:

In Oklahoma, voters could ban harsh sentencing enhancements that can keep people in prison longer for nonviolent crimes. In California, voters will consider three measures: one to affirm the end of cash bail, another to let people vote while on parole, and a third to roll back recent criminal justice reforms. In Nebraska and Utah, voters could prohibit slavery as a criminal punishment, including forced prison labor.  And in Kentucky, voters could approve a controversial crime victims’ rights law.

Not all of these are for reform as many people think of it today. Some of the initiatives, particularly in California and Kentucky, have been criticized by activists seeking to end mass incarceration and the war on drugs. But depending on how voters decide on these initiatives, they could continue the broader work of the past decade to fix America’s punitive criminal justice system.

The Vox page leaves out the large number of drug reform initiatives, but thankfully the folks at Marijuana Moment have created this great webpage with tracking tools to follow all the marijuana and drug reform ballot initiatives that voters are considering today around the country.  Here is how its set up:  

Marijuana Moment is tracking 11 separate cannabis and drug policy reform measures on ballots in seven states.  Stay tuned to this page for results as votes are counted.

Make sure to follow Marijuana Moment and our editors Tom Angell and Kyle Jaeger on Twitter for live news and analysis, and check our homepage for individual articles about each ballot measure as races are called.

Thanks to support from ETFMG | MJ, we have a single tracker tool below that lets you cycle through all of the key measures as well as separate standalone tools for each initiative.

And do not forget about this great web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  

Though I am interested in all these results, I am especially eager to see how Oklahoma's novel criminal history reform measure, how South Dakota's marijuana legalization initiative, and how Oregon's drug decriminalization measure fare. The nature of the issues and the states in which they are taking place strike me as especially interesting and important.

As always, I would be interested to hear from readers about what issues or races they are following especially closely tonight.

November 3, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

Wednesday, October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, October 25, 2020

Covering just some of many criminal justice reforms stories percolating in 2020 election

Every election is important for the fate and future of criminal justice reform, but every even-year Fall it is hard not to get caught up in the notion that this year's election is uniquely significant and consequential.  As I noted in this prior post, the discussion at the last Prez debate leads me to be (foolishly?) hopeful that we will see some follow up to the FIRST STEP Act or some other form of of federal criminal justice reform in the coming years no matter who prevails at the federal level.  But surely the scope and contents of possible federal reform will depend not only on who is in the White House and who is in charge in Congress, but also on what kinds of reforms move forward and prove successful at the state and local level.   

Because the FIRST STEP Act at the federal level was made possible in part by the political and practical successes at the state level, even those focused primarily on the federal system ought to keep a close eye on state and local criminal justice reform and election realities.  Helpfully, there is a lot of good press coverage on all these topics these days, and here is a sampling:   

Some National Perspectives:

From The Appeal, "Your Guide To 30 Sheriff And Prosecutor Elections That Could Challenge Mass Incarceration: These are key local elections where criminal justice reform is on the line next month."

From the Drug Enforcement and Policy Center, "Drug Reforms on the 2020 Ballot: A closer look at drug policy reform decisions voters will make during the 2020 election"

From Fox News, "Marijuana-legalization supporters tout economic benefits in new voter pitch: Advocates argue sales and excise taxes would help bail out states crushed by coronavirus"

From Reason: "On Criminal Justice, Trump and Biden Are Running Against Their Own Records: The progressive who helped usher in mass incarceration is running against the law and order conservative who let prisoners go free."

From Vox, "How 2020 voters could change the criminal justice system, in 6 ballot measures: Voters in several states have a chance to change the criminal justice system in 2020."

From Vox, "2020’s psychedelic drug ballot measures, explained: Oregon and Washington, DC, voters may relax their laws for psychedelic drugs."

 

Some State Specifics:

From the Denver Post, "Half of Colorado’s district attorneys will be replaced after election, setting scene for future of criminal justice reform"

From Governing, "California to Vote on What’s Next for Criminal Justice Reform: The state’s Proposition 20 would expand felonies which are ineligible for parole and collect DNA samples of misdemeanor offenders. Californians must decide if it assures public safety or is backward progress."

From The Oklahoman: "Five things to know about Oklahoma State Question 805"

From Vox, "Oregon’s ballot measure to decriminalize all drugs, explained: The ballot measure is trying to move the state from a criminal justice to a public health approach on drugs."

October 25, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (2)

Saturday, October 24, 2020

"What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life"

The title of this post is the title of this interesting new piece authored by Josh Bowers available via SSRN.  Here is its abstract:

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly.  In this article, I question that assumption and propose a radical alternative.  Consider the individual punished repeatedly for hopping subway turnstiles.  As convictions accumulate, sentences rise — to weeks and ultimately months in jail.  At some point, criminality comes to signal something other than the need for punishment.  It signals the presence of need.  Perhaps, the recidivist was compelled by economic or social circumstances.  Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one.  No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences.  My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists.  But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.  My goals are at once narrow and broad.  I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.  I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally.  I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings.  I endorse “harm reduction,” the governance philosophy that grounds those reforms.  And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

October 24, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)