Sentencing Law and Policy

New policy brief on EQUAL Act assembles notable data on crack and powder cocaine sentencing

This press release, headlined "Princeton Policy Advocacy Clinic Students Release Analysis of Federal Crack-Powder Cocaine Sentencing Disparities, Draw Bipartisan Praise," provides a partial summary of this great new policy brief.  Here is part of the press release:

[Detailed crack offense sentencing] data come from a nonpartisan policy brief written by undergraduate students as part of the Princeton School of Public and International Affairs’ Policy Advocacy Clinic, analyzing the potential impacts of passage of the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  First introduced in 2021 and then re-introduced in 2023, both times with strong bipartisan support, the EQUAL Act would eliminate the 18-to-1 federal sentencing disparity between crack cocaine and powder cocaine offenses and authorize the resentencing of people previously convicted of crack offenses.

In their policy brief, Emilie Chau ’25, Nate Howard ’25, and Jennifer Melo ’25 present a history of the sentencing disparity, aggregate data on federal convictions and incarceration for cocaine offenses, and analyze demographic information of those convicted.  They also share a projection by the U.S. Sentencing Commission that passage of the EQUAL Act would reduce the average sentence of newly convicted people by 31 months and cut the average sentence of nearly all of the 7,800 people eligible by more than 6 years.

I recommend the policy brief in full, as it presents lots of notable data on federal sentencing from Fiscal Year 2015 to 2023 quite effectively.  It also concludes with this notable point about state sentencing for cocaine offenses:

Forty-one states have no sentencing disparity between crack and powder cocaine, and of the remaining nine, seven of them have a disparity that is lower than the 18-to-1 ratio at the federal level.  This means that only two states, Missouri and New Hampshire, have sentencing disparities that are higher than the federal level.  It is also striking that political partisanship does not appear to be determinative of cocaine sentencing policy.  The vast majority of red states, blue states and purple states have no sentencing disparity.

Reduction granted on two bases to remedy extreme stash-house sting sentence

A helpful colleague alerted me to a notable recent sentence reduction ruling/opinion handed down last week in US v. Evans, No. 93-00123-CR (SD Fla. Dec. 10, 2024) (available download below). The case inolves a defendant who was initially sentenced three decades ago to 57 years in federal prison in a so-called "stash house sting" case. (I have posted on the ugly dynamics of stash-house stings in any number of prior posts, and I recommend two episodes of the Drugs on the Docket podcast (here and here).)  

The 33-page ruling in the Evans case should be read in full, as it covers lots of notable factual and legal ground.  The ruling defies easy summarization, and I will here just reprint the start of the opinion and some later notable passages:

Sherlon Evans has served over thirty-one years of a nearly fifty-year sentence, totaling 595 months.  Mr. Evans has now moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A), claiming that “extraordinary and compelling” reasons warrant review....   

Mr. Evans cites two “extraordinary and compelling” bases recognized by the recent policy statement issued by the U.S. Sentencing Commission (the “Commission”) as potentially justifying a reduction in sentence.  First, Mr. Evans contends that he is serving an “unusually long sentence” that is subject to a substantive change in law, which would produce a “gross disparity” between the sentence he is currently serving and the sentence that would likely be imposed today. USSG § 1B1.13(b)(6).  Second, Mr. Evans points to the “unique aspects of [his] case” under the “catch-all” provision of § 1B1.13(b)(5), which permits a reviewing court to consider “any other circumstance[s]” that are “similar in gravity” to the other extraordinary and compelling reasons recognized by the Commission.

The Government opposes Mr. Evans’s Motion in its entirety.  It first challenges the validity of the Commission’s new policy, claiming the Commission had no authority to issue it, that the policy conflicts with § 3582(c)(1)(A), and that the policy raises separation of powers concerns.  The Government also argues that even if the new policy is binding, Mr. Evans is not entitled to a reduction under the supposedly compelling reasons he cites.  I reject the Government’s position on both fronts ... and reduce his sentence to time served....

[A]t least forty-three defendants who were convicted through reverse stash house stings have since had their sentences reduced to an average of just three years following protracted litigation against the ATF for alleged racial discrimination in its implementation of reverse stings.  [And] the circumstances of Mr. Evans’s sentence are even more striking in light of the fact that he played a relatively minor role in the conspiracy orchestrated by the ATF and Henry. That is, Mr. Evans was arrested because he was present when Henry planned and executed the “robbery.” I use the term “present,” as “the case against Mr. Evans was one that rose and fell on presence, and nothing more than presence. Presence [at] one meeting in which he may or may not have had very little to say, and presence along with everybody else at the scene of the offense at the time the arrests were made.”  Mr. Evans was not the ringleader or mastermind, did not supply weapons or recruit the other co-defendants into the scheme.  He was not even present when the conspiracy was hatched.  He was a tagalong, a hired hand to assist in the criminal deeds of others. Yet, Mr. Evans was sentenced with nearly the same degree of severity as those who were arguably more culpable in the commission of the crime....

[Other cases in which sentences were reduced] echo my own dismay and discomfort with the concept of a reverse stash house sting.  And when such a process results in a sentence of nearly half a century, that is an intolerable outcome.  To be sure, § 1B1.13(b)(5) may not be a vehicle to question the wisdom of the Government’s policing and prosecutorial practices.  It is a vehicle, however, to question the wisdom of continuing to incarcerate this particular man for another decade or more.  Sherlon Evans has served thirty-one years in federal prison for his presence in a conspiracy that he did not plan or lead, attempting to rob drugs that never existed, and carrying a “machine gun” that wasn’t a machine gun, which he never bought, held, brandished, or used. If his original sentence is left unaltered, Mr. Evans will be well into his seventies when he leaves prison — without having been convicted of actually selling one gram of cocaine or hurting any other person.

Download US v. Evans sentence reduction opinion

"Prohibition Constitutionalism"

The title of this post is the title of this review essay recently appearing on SSSRN authored by Matthew B. Lawrence. Here is its abstract:

This Review Essay describes and applauds David Pozen’s book, The Constitution of the War on Drugs, and offers its own intervention.  Scholars have traced the failed addiction policies exemplified by the “war on drugs” to underlying root causes including racism, politics, and moral stigma.  The core contribution of The Constitution of the War on Drugs is to show that constitutional law is an additional such root cause.  The book does so by unearthing ways the Constitution has accepted and abetted carceral addiction policy.  In pointing to constitutional law as a root cause of the drug war and, so, as a potential site for contestation against carceral drug policy, the book connects criminal law, health law, and constitutional law in ways that should enrich all three fields.

For all the book’s strengths, however, The Constitution of the War on Drugs does not go far enough in mapping the interaction of constitutional law and addiction policy that it uncovers.  In surveying “near misses” during the twentieth century when constitutional litigation came close to invalidating prohibitionist drug policies, the book limits its study to constitutional law’s negative potential to impede carceral drug policies.  This prohibitionary approach to constitutionalism leaves unaddressed and unrecognized important ways that constitutional law shapes which addiction policies are enacted in the first place — ways constitutional law influences the repeated choice of carceral drug policy over more effective evidence-based policies such as investments in treatment, housing, and social supports.  Doing so misses promising contemporary sites of contestation and risks playing into President Nixon’s brilliantly pernicious conceptual framing of addiction policy as a punitive war on drugs.  The book’s approach also risks bolstering contemporary anti-regulatory trends illustrated by ongoing attacks on the administrative state.  In further developing the interaction of constitutional law and addiction policy that The Constitution of the War on Drugs uncovers, future scholars should consider thick, affirmative conceptions such as Roberts’s freedom constitutionalism or Parmet’s public health constitutionalism.

Prior related post:

• Latest episode of "Drugs on the Docket" podcast engages with David Pozen and his new book, The Constitution of the War on Drugs 

Crack is still wack for thousands in Florida still carrying unconstitutional convictions from 1980s

This recent AP story, headlined "Florida prosecutor seeks to clear records of people charged with buying police-made crack in 1980s," highlights how remedies for unconstitutional convictions can often be a very long time in coming (if they come at all).  Here are the details:

A Florida prosecutor says he will seek to vacate as many as 2,600 convictions of people who bought crack cocaine manufactured by the Broward County Sheriff’s Office for sting operations between 1988 and 1990.

The Florida Supreme Court ruled in 1993 that people couldn’t be charged in cases where the sheriff’s office made the crack cocaine and undercover deputies then sold it to buyers who were arrested and charged.

Broward County State Attorney Harold F. Pryor said Friday that while his office was reviewing old records, prosecutors realized that many people may still have criminal charges or convictions on their records because of the sting operation. “It is never too late to do the right thing,” Pryor said in a statement.

It’s just one example of how the crack cocaine epidemic of the 1980s and early 1990s led to harsh police practices and heavy criminal penalties. Some people may have been convicted of serious felonies because they bought drugs within 1,000 feet (300 meters) of a school. Conviction under that law required at the time that defendants be sentenced to at least three years in prison.

“They were arresting people not for selling, but for purchasing,” Ed Hoeg, a defense lawyer, told the Sun Sentinel of Fort Lauderdale. At the time, Hoeg was a public defender who represented Leon Williams, whose appeal led to the state Supreme Court outlawing the practice. “They had detention deputies posing as dealers,” Hoeg said. “They would sell it, and these poor people who were addicts were buying it. And they were selling it within 1,000 feet of schools, so the penalties would be greater.”

The sheriff’s office said at the time that it began making crack because it didn’t have enough of the seized drug to use in its sting operations and because it didn’t have to later test the cocaine content of crack made by a sheriff’s office chemist. “We find that the law enforcement’s conduct here was so outrageous as to violate Florida’s due process clause,” the state Supreme Court wrote in the decision....

The review will take “a considerable amount of time,” Pryor said. He said his office will contact people who may be affected.

Bureau of Justice Statistics releases new report on "Methamphetamine, Cocaine, and Other Psychostimulant Offenses in Federal Courts, 2022"

Via email, I learned of this notable new report released today by the Bureau of Justice Statistics, titled "Methamphetamine, Cocaine, and Other Psychostimulant Offenses in Federal Courts, 2022."   The reportprovides details on persons arrested and convicted for a federal offense in Fiscal Year 2022 involving various (but not all) federal controlled substances: "Fifty-five percent (14,392) of the total arrests (26,233) the Drug Enforcement Administration (DEA) made during fiscal year (FY) 2022 were for methamphetamine, cocaine, and other psychostimulant offenses." The discussion of sentencing in this report appears drawn from US Sentencing Commission data, and here is a small part of an extended data discusssion:

In FY 2022, 14,420 persons were sentenced for a drug offense involving psychostimulants, an increase from 12,616 in FY 2021. Methamphetamine (9,704) was the psychostimulant type that the largest number of persons were sentenced for in FY 2022, followed by powder cocaine (3,476) and crack cocaine (1,117)....

On average, the number of persons sentenced for psychostimulants decreased by 1% annually from FY 2002 to FY 2022. More persons were sentenced for methamphetamine (up 5% annually) in FY 2022 than in FY 2002. Fewer persons were sentenced for drug offenses involving MDA and MDMA (down 11% annually) crack cocaine (down 7% annually) and other amphetamines (down 4% annually) in FY 2022 than in FY 2002....

Nearly three-quarters (73%) of persons sentenced for a drug offense involving psychostimulants in FY 2022 were sentenced below the applicable guideline range. Thirty-five percent of persons sentenced received a downward departure (a more lenient sentence than the guideline range). The most common (21%) downward departure was a substantial assistance departure for assisting the authorities in the investigation or prosecution of another person or organization.  Nine percent of persons sentenced for a drug offense involving psychostimulants received an early disposition program departure, which occurs when the government seeks a sentence below the guideline range because the person participated in the government’s expedited guilty plea program.  An additional 37% of persons sentenced for a psychostimulant drug offense received either a downward range variance (24%) or a governmentsponsored variance (13%) Reductions in sentences, both departures and variances, were due to prosecutors’ motions 43% of the time.

In FY 2022, 94% of persons sentenced for a drug offense involving psychostimulants were sentenced to imprisonment only. The median term of imprisonment for persons sentenced for a drug offense involving psychostimulants was 70 months. Persons sentenced for a drug offense involving methamphetamine received a median prison term of 94 months in FY 2022.

Initiative results in states show political pendulum swinging back on sentencing and drug policy reforms

I flagged in this postyesterday some of my pre-election coverage of some state initialtives on sentencing issues and drug policy reform.  And now, with results mostly tabulated, the votes in higher-profiles issues on the ballot on Election Day 2024 seem to be telling a fairly consistent story that voters have grown much less interested in progressive reforms than in past elections.

The higest-profile initiative in this space was California's Proposition 36, titled "Increase Sentences for Drug and Theft Crimes," and this New York Post piece highlights the outcome in its headline: "Californians overwhelmingly pass anti-crime Proposition 36 measure that Dem Gov. Gavin Newsom strongly opposed."  This New York Times' result tracker as of ths writing shows this initiative getting over 70% of the vote in the Golden State.  That number might come down as more ballots are counted, but it is quite notable that the initiative appears to be winning by double digits in every single county.

Colorado had a number of criminal justice initiatives that also appear to have been approved by voters including more funding for police training and limits on bail for some murder defendants.  And the sentencing related issue, Proposition 128, to limit parole eligibility for certain violent offenders as of now has over 62% of the vote.  This New York Times result tracker shows this initiative getting significant support in every county except Boulder.

The story on drug policy reform is a bit more nuanced.  Nebraska voters approved two medical marijuana reform initiatives by nearly a 70% vote, but on-going court challenges might preclude actual reforms.  Voters in both North Dakota and South Dakota rejected full marijuana legalization by roughtly 55% of the vote, though the vote was slightly more in favor of reform in North Dakota than for a similar initiative in 2022 and slightly less in favor in South Dakota compared to 2022. 

The biggest and most-watched marijuana reform initiative was Florida's Issue 3 seeking full legalization in the Sunshine State.  Voters in Florida favored this reform at nearly 56%, which is very close to the "yes" votes for full legalization in "blue" states like Colorado and Washington and Oregon and California and Massachusetts in years past.  But in Florida, unlike all those other states, a supermajority vote of 60% is needed for legalization.  I had thought now-Prez-Elect Donald Trump's endorsement of Issue 3 might get it past the post, but on this issue he did not move the needle enough for passage.

In addition, Massachusetts voters voted down by a large margin a ballot measure that would have legalized psychedelics for adults 21 and older.  Such reform has gotten voter approval in Colorado and Oregon in recent years, but the Bay State voters were disinclined to follow along.

"Oregon's Drug Decriminalization Debacle"

The title of this post is the title of this new article now available via SSRN and authored by Paul Larkin.  Here is its abstract:

The failure of the Oregon Drug Addiction Treatment and Recovery Act of 2020 to achieve its objectives teaches us a host of lessons about the prospects of any new law or policy to achieve its stated goals.  Measure 110 failed for a number of reasons, including that its proponents held unrealistic opinions about the ability of a new law to solve an old, chronic problem and failed to consider, or greatly misjudged, the reasons why a new approach to an old problem could become law without the support of an educated majority of the electorate.  The proponents of Measure 110 thought that they had a perfect solution to an intractable problem.  They abandoned a strategy that, while far short of perfect, at least offered some people an opportunity to turn their lives around, and they did not consider middle-ground alternatives, involving some degree of coercion, that might have been more successful, albeit only partial, solutions for treating the abuse of dangerous drugs.  The reform they adopted worsened matters considerably, but Oregon deserves kudos for realizing that its experiment failed and for trying to remedy its mistake with a different approach.  Hopefully, others will learn from what Oregon’s decriminalization strategy led to and will not have to suffer through the consequences of the mistakes that Oregon made.

Rounding up some recent coverage and commentary on Prop 36 in California

The most significant sentencing-related ballot initiative in the 2024 election cycle is California’s Proposition 36, titled "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative."  This initiaitive is summarized by Ballotpedia this way:

A "yes" vote supports making changes to Proposition 47 approved in 2014, including: classifying certain drug offenses as treatment-mandated felonies; increasing penalties for certain drug crimes by increasing sentence lengths and level of crime; requiring courts to warn individuals convicted of distributing illegal drugs of their potential future criminal liability if they distribute deadly drugs like fentanyl, heroin, cocaine, and methamphetamine; and increasing sentences for theft based on the value of the property stolen.

A "no" vote opposes this initiative that makes changes to Proposition 47 (2014), thereby maintaining certain drug and theft crimes as misdemeanors.

I have recently noticed more press outlets discussing and advocating around Prop 36, and here is an abridged review of just some of the coverage and commentary catching my eye:

From Cronkite News, "California’s Prop. 36, which would again toughen criminal penalties, sparks debate"

From LAist, "California Proposition 36: Increases criminal penalties for certain drug and theft crimes"

From Lookout Santa Cruz, "California voters consider tough love for repeat drug offenders with Prop 36"

From the Los Angeles Times, "Endorsement: No on Proposition 36. California shouldn’t revive the disastrous war on drugs"

From the Orange Country Register, "Prop. 36 is a common sense solution to the suffering on our streets"

From Reason, "Should California Vote To Roll Back Criminal Justice Reforms?"

From the San Diego Union Tribune, "Endorsement: Yes on Proposition 36: Time to free the detergent"

"Drug Policy, Drug War, and Disparate Sentencing"

The title of this post is the title of this book chapter that I just noticed on SSRN and authored by Emily Greberman and Colleen Berryessa. Here is its abstract:

The United States (U.S.) and its criminal-legal system have had a historically turbulent relationship with drugs and substance use.  Public rhetoric, political ideology, and resulting policies, shaped by both rehabilitative and punitive ideals, have served as a foundation for the criminalization and mass incarceration of those who possess, distribute, and use illegal drugs–especially the targeting and blaming of communities of color.  Early on, though drugs such as opium had versatile medical benefits, the use of heroin, crack/cocaine, and cannabis by people of color was quickly shaped into discourse that amplified fear and racist stereotypes and catalyzed the War on Drugs.  Throughout several presidential administrations, the criminalization of drug crimes disproportionately affected Black individuals, despite White citizens using them at similar or higher rates.  ‘Tough on crime’ policies, policing, and sentencing that resulted from this period culminated in the mass imprisonment of people of color.

Now trying to repair the harm caused by the War on Drugs and rhetoric from the media in 2024, there is a strong push for the decriminalization and legalization of several drugs across the U.S.  For cannabis in particular, efforts have been made to advocate for its legalization federally.  In the criminal-legal system, many political leaders and legislators have actively attempted to advocate for and enforce policies that release individuals from prison who have been incarcerated for minor drug offenses or are affected by unjust sentencing practices.  Combined with nationwide efforts to promote research on the use of drugs for medicinal purposes as well as the problems of drug abuse and addiction, a more progressive and optimistic approach to drug use has begun and continues to grow across the U.S. The social and political forces that have historically shaped attitudes towards drug use and punishment are crucial to understanding the current direction of U.S. drug policies and why the pendulum continues to swing.

"The Weight"

The title of this post is the title of this new essay authored by Mark William Osler now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

Baked into the mechanism for determining sentences in drug cases is an old, simple and pernicious machine for injustice: the use of the weight of narcotics to measure relative culpability for drug crimes.  At an instinctual level it makes sense, since someone selling 100 pills is doing more harm than another person who sells five.  But this ignores a basic fact about drug crimes: that they are business crimes that are committed by groups of people acting together, with different roles. That means the same deciding factor, the weight of the narcotics transported, is going to apply equally to both the mule who simply drives the drugs to a destination for a small payment and the mastermind who will ultimately make real money off the deal.  There is a better way — to tie relative culpability to the profit taken by an individual — and it is time to make this change.

Updated DEPC resource reviews "Drugs on the Ballot" 2024 (and in prior elections)

I am very pleased to be able to promote this updated resource page, "Drugs on the Ballot," authored by the great staff at the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  The page not only details the various marijuana reform ballot initiatives that voters will be considering in at least four states this November, but it also provides a set of maps and timelines of efforts to enact and implement state marijuana reforms over time, via both ballot measures and legislation.  Here is the introduction to the resource on the main page:

Ever since California voters legalized medical marijuana via a ballot initiative in 1996, many advocates in the U.S. have embraced direct democracy as a means to bypass reluctant legislatures and advance marijuana legalization and broader drug policy reforms.  There are now 24 states that have legalized adult-use marijuana, in addition to Washington D.C. On November 7, 2023, Ohio joined the list of 14 out of those 24 states that have legalized adult-use marijuana via the ballot box.  As of the summer 2024, marijuana is legal for medical use in 38 states.  Of those, 18 states passed medical marijuana at the ballot box, with the other 20 passing medical marijuana via the legislature.  The 2020 ballot saw Oregon decriminalize possession of small amounts of all drugs, though a 2024 law passed by Oregon’s legislature has mostly rolled back the measure.  Voters in 2022 approved a ballot initiative decriminalizing some psychedelic plants and fungi in Colorado.

This page details the drug-related ballot initiatives up for a vote in the November 2024 election and provides a timeline of efforts to enact and implement marijuana reforms via the ballot box since 1996.  It also provides information on the 2022 ballot initiatives, as well as the 2023 ballot initiatives in Oklahoma and Ohio, and the results of six Ohio localities that sought to decriminalize marijuana via local ordinances in November 2022.

Former Prez Trump goes all in on marijuana reform ... perhaps as a pregame strategy for big Prez debate

I have been covering over at my other blog statements by former Prez Donald Trump about marijuana reform: in this post nine days ago, I noted the social media post seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comments suggesting his likely support for federal rescheduling.  Now, via this latest social media posting from late last night, Trump has made it quite clear that he is all-in on both state and federal marijuana reforms: 

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

These policy positions are quite interesting and significant in their own right, but it is also notable that Trump starts his latest social media posting of his pro-reform positions with this notable preamble: "As I have previously stated, I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use."  This sentiment reinforces my prior stated view that Trump, ever the populist, understands that decriminalizing marijuana for personal use is very popular.  But it also now has me thinking that Trump is gearing up to attack VP Kamala Harris at their coming debate over her record as a local prosecutor jailing persons for low-level marijuana offenses.  

Of course, there is a notable history of Harris being attacked on her marijuana record by Tusli Gabbart back in 2019.  This new NBC News article talks about that moment and how "Gabbard won loud, raucous cheers and applause" after stating that Harris "put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana."   And, of course, Gabbart has recently endorsed Trump and is apparently part of his debate-prep team:

Asked about Gabbard’s involvement in debate preparations — such as they are in Trump world — a Trump campaign official said she had been helpful getting Trump to think about the pivot from attacking Harris to highlighting his policies or what he would do differently.  That included talking through how to take things one step beyond the attack lines he gives at rallies into cohesive debate answers.  The campaign official said the Trump team had been trying to get Gabbard involved for a while. “Tulsi Gabbard whipped Kamala Harris’ butt on the debate stage,” Trump spokeswoman Karoline Leavitt said. “She’s offering her advice to President Trump ahead of Tuesday’s debate.”

Interesting times, and likely also reflective of the fact that marijuana reform is especially popular with many young voters that Trump seems eager to court.  And, for anyone thinking more broadly about criminal justice issues and the coming Prez debate, the Sentencing Matters Substack team has a new post for you: "Presidential Debate: Agreements Call for Deeper Probing on Crime and Punishment."

Some recent related posts:

• Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms
• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?
• Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere 

Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification

Last week I came across a short federal district court opinion in US v. Valdivias, No. 20-20054-02-DDC (D. Kan. Aug. 26, 2024) (available here), rejecting some notable originalist jury claims by a drug defendant. I recommend the entire opinion, and here are excerpts:

Before trial, Defendant Hugo Chavez Valdivias filed a Motion to Inform the Jury of the Sentencing Range, to Permit Nullification Arguments, and to Exclude Pattern Criminal Jury Instruction 1.20 (Doc. 204).  First, he asks the court to instruct the jury on sentencing ranges for the charges in the Superseding Indictment.  Second, he asks the court not to instruct the jury that it must ignore possible punishment in evaluating guilt.  Third, he asks the court to permit sentence-based “nullification” arguments.

Defendant supports these three requests by invoking an “originalist understanding of the constitutional jury trial right.” Doc. 204 at 1. He first argues that our Circuit’s cases prohibiting nullification arguments are based on policy, not the Constitution’s original meaning.  This basis, he argues, requires the court to disregard the cases as “obsolete” in light of the Supreme Court applying “methods of originalism” to interpret the Sixth Amendment. Id. at 6. He next argues that Supreme Court cases frequently cited in opposition to jury nullification don’t resolve the issue before the court. Id. at 9–14. 

The government disagrees. It argues that the jury in this case has no role to play in sentencing and so it can’t consider any possible sentence. Doc. 208 at 2. What’s more, our Circuit has held there isn’t a right to sentence-based nullification arguments, id. at 4, and, the government argues, is bound by those precedents, id. at 6.

Our Circuit and the Supreme Court disagree with defendant’s position as well.  And so, following precedent, this court must disagree.

Though I am not completely versed on every aspect of originalist history and arguments regarding the jury trial right, I have read enough historical accounts or jury functioning at the Founding to believe the defendant here could make a robust originalist claim.  But, as the ruling suggests, all contemporary precedents on informing a jury about sentencing issues and nullification power are contrary to these kinds of originalist contentions.  This arena, then, serves as another example (of many) where it would seem a serious commitment to an originalist interpretation of the Constitution would provide crminal defendants more rights than they have under modern jurisprudence. 

Fifth Circuit panel declares unconstitutional application of federal prohibition on gun possession by “unlawful user” of controlled substances

A Fifth Circuit panel today declared unconstitutional a federal gun possession prohibition as applied to a "non-violent, marijuana smoking gunowner." The unanimous panel ruling in US v. Connelly, No. 23-50312 (5th Cir. Aug. 28, 2024) (available here), starts and ends this way:

Paola Connelly is a non-violent, marijuana smoking gunowner.  El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola’s husband, standing at their neighbor’s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola.  There was no indication that Paola was intoxicated at the time.

Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment.

This appeal asks us to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation.  The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon (and for that reason Paola’s facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage.  Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming “dangerous” persons apply to nonviolent, occasional drug users when of sound mind.  We AFFIRM as to Paola’s as-applied challenge and REVERSE as to her facial challenges....

Paola’s § 922(g)(3) charge is inconsistent with our history and tradition of firearms regulations for the reasons discussed above, so we AFFIRM the judgment of dismissal as to her as-applied challenge.  But that holding is narrow. There undoubtedly exist circumstances where § 922(g)(3) may apply constitutionally, such as when it bans a presently intoxicated person from carrying firearms, so we REVERSE as to Paola’s facial challenge.  Finally, we REVERSE as to Paola’s facial challenge to § 922(d)(3).

Might Donald Trump advocate for the release of all those still serving time for marijuana offenses?

The quetion in the title of this post is prompted by comments made by Donald Trump during a press conference at Mar-a-Lago this past  Thursday.  Notably, as detailed in this effective Last Prisioner Project discussion, we really do not know exactly how many people are serving time in jail or prison for marijuana offenses.  But, as detailed in this Marijuana Moment piece, when former Prez Trump was asked about marijuana legalization, he seemed to suggest he was growing more supportive of the posision and specifically stated that "it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal."  Here are details Marijuana Moment piece:

Former President Donald Trump says he is starting to “agree a lot more” that people should not be criminalized over marijuana given that it’s “being legalized all over the country” — adding that he will “fairly soon” reveal his position on the cannabis legalization measure on the November ballot in Florida, where he is a voter.

“As we legalize it, I start to agree a lot more because, you know, it’s being legalized all over the country,” Trump said at a press conference at Mar-a-Lago on Thursday. “Florida has something coming up. I’ll be making a statement about that fairly soon.”

A reporter had asked about the Biden-Harris administration push to reschedule cannabis, as well as Vice President Kamala Harris, the 2024 Democratic presidential nominee, stating repeatedly that people should not be incarcerated over simple cannabis offenses.  “As we legalize it throughout the country — whether that’s a good thing or a bad thing — it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal,” Trump replied. “So I think obviously there’s a lot of sentiment to doing that.”

While not an explicit endorsement of major marijuana reform, the statement represents another example of Trump departing from the harsh anti-drug rhetoric he’s been employing over this latest campaign, at least when it comes to marijuana. And while it’s unclear whether he will choose to back the Florida cannabis legalization measure that he will have the chance to vote on as a resident, he did not take the opportunity to denounce it, despite Florida Gov. Ron DeSantis’s (R) campaign against the reform measure.

The candidate also discussed people he’s issued presidential pardons for, including Alice Johnson, who was sentenced to life in prison without the possibility of parole over her role in a cocaine trafficking ring in the 1990s.  He said Johnson is a “fantastic woman” who “served 24 years for being on a phone call having to do with drugs, adding that she “was great” and “had another 24 years to go, and it was largely about marijuana, which, in many cases, is now legalized” at the state level.

I am pretty sire that Alice Marie Johnson had served over two decades of a life sentence on charges related to cocaine distribution and money laundering, not marijuana. That Trump now wanted to say her offense was "largely about marijuana" may, in its own way, support a supposition that Trump in a second term might actively seek release of all those still serving time for marijuana offenses.

Could further lowering of drunk driving limits save thousands of lives in the US?

The question in the title of this post is prompted by this new New York Times piece headlined "How Much Alcohol Is Too Much for a Driver?  Experts argue the U.S. drunk-driving limit is too high."  I recoemmend the piece (and its many links) in full, and here are excerpts:

In late 2018, Utah lowered its drunk-driving limit from a B.A.C. (blood-alcohol content) of .08 to .05.  A year after the law was implemented, the National Highway Traffic Safety Administration found that fatal car crashes in the state had dropped by nearly 20 percent.

“Believe me, I never thought we would see a significant effect in Utah,” said James Fell, a principal research scientist who studies traffic safety at the independent research organization NORC, at the University of Chicago.  The state had one of the lowest impaired driving rates in the United States to begin with, he added.

Utah is currently the only state in the country with a .05 drunk-driving limit; everywhere else, the limit remains .08. But internationally, Utah is far from alone. Australia, France, Thailand and about 50 other countries have a B.A.C. limit of .05, and in more than 30 other countries, the limit is even lower.

With U.S. drunk-driving deaths rising in recent years (about 33 percent between 2019 and 2022, according to the most recent data), several other states — including New York, Washington, Hawaii and Connecticut — are now considering similar legislation to lower the legal driving limit.  “We’re losing, on the highways these days, more than 13,000 people a year,” said Thomas Chapman, a member of the National Transportation Safety Board. “I mean, it’s just an astonishing number.” In 2022, drunk-driving accidents accounted for 32 percent of all traffic fatalities.

The current national drunk-driving limit wasn’t established until 2000, when Congress passed a bill that required all states to set their B.A.C. limit at .08 in order to continue receiving federal highway funds.  Before then, some states used .08, while others used .10.  Even at that time, some researchers and advocates thought the limit should be as low as .05....

Experts say that the science strongly supports a lower B.A.C. limit.  Multiple studies testing people’s cognitive faculties when drinking have found that both sustained attention and multitasking are already impaired at .05.  People become drowsy at even lower levels of intoxication.  And on driving simulators used in a lab setting, people perform worse with any amount of alcohol in their system.

Looking at how these impairments affect people’s driving in the real world, one study reported that people with a B.A.C. of .05 had a 38 percent higher risk of getting into a car crash than those with no alcohol in their system; at .08, the risk rose to 169 percent.  And an analysis Mr. Fell conducted in 2017 estimated that lowering the legal limit nationally to .05 could reduce alcohol-related fatal crashes by 11 percent, saving nearly 1,800 lives per year....

According to the experts interviewed for this article, one of the main opponents is the hospitality industry, which argues that a B.A.C. limit of .05 would hurt restaurants and bars.... In Utah, there was little evidence that this happened. The National Highway Traffic Safety Administration report found that alcohol sales in the state continued on a steady upward trajectory from 2012 to 2020 and were not disrupted by the passage or implementation of the law. That study provided “important” evidence that a lower B.A.C. limit did not have a “negative impact on alcohol sales or tax revenues or tourism,” Mr. Chapman said.  Rather than drinking less, the report stated, people were more likely to find an alternate way home.

In approximately half of all fatal crashes involving alcohol, drivers have a B.A.C. of .15 or higher, so a lower limit may not deter the worst offenders any more than the current laws do.  However, it could influence those who are mindful of the limit but might not recognize when they are impaired.

Long time readers may recall that I have long supported lowering of BAC levels in drunk driving laws, in addition to a range of reasonable efforts (including sentencing sanctions like ignition locks), that have been consistently shown to reduce highway fatalities associated with drinking and driving.  (Here is post on this front from back in 2013 with lots of additional links.)  Even before our smart phone era, I never have felt it was too much to ask drinkers to find a safe way home other than driving.  And with Uber and Lyft now providing such an available means for always accessing a safe ride home, I hope many states will look to save lives and reduce other avoidable harms by lowering their drunk driving limits.  

"Rescheduling Marijuana: Implications for Criminal and Collateral Consequences"

The title of this post is the title of this short document prepared by the Congressional Research Service.  The document is notable mostly for its review of marijuana's existing criminal and collateral consequences than for a review of the implication of resecheduling.  Here is the heart of the rescheduling discussions:

Many CSA penalties for marijuana violations are written specifically for marijuana and are not tied to its Schedule I classification. If marijuana moves to Schedule III, those penalties would remain the same.  Many CSA and other federal offenses associated with marijuana’s general status as a controlled substance would also remain the same....

If marijuana moves to Schedule III, most of the consequences for its use or for marijuana-related convictions would remain the same.

That said, though rescheduling will not have many certain formal legal consequences in this area, I do think it could and likely would have all sorts of practical enforcement consequences. The CRS document notes the significant enforcement changes we have seen in recent years at the federa level even without any formal legal reforms:

Over the last five years (FY2019–FY2023), the number of individuals sentenced for marijuana trafficking in federal court has declined by 66%, from 1,674 per year to 561.  This decline is even sharper when considering longer term trends. In FY2014, 3,876 individuals were sentenced in federal court for marijuana trafficking (almost seven times higher than FY2023).

A few years ago, I co-authored this paper discussing these federal enforcement trends under the title "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."  I would expect federal marijuana rescheduling to have all sorts of (predictable and unpredictable) practical "implications for criminal and collateral consequences" in federal and state systems even if the formal legal impacts are quite modest.  

If any folks are interested in the wide array of broader legal issue connected to possible federal marijuana rescheduling, consider attending the online event next week hosted by the Drug Enforcement and Policy Center.  This event, titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT, is described at this event page (which links to this registration page).

Latest episode of "Drugs on the Docket" podcast engages with David Pozen and his new book, The Constitution of the War on Drugs

In this post from last month, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had started releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube, where you can also find prior Season 2 episodes as well.)   Now, as detailed on this podcast webpage, we just recently released the fourth episode of this new season. which I consider absolutely fascinating on a number of fronts because it covers the intersections of constitutional right and jurisprudence and modern drug enforcement law and policy.  Here is the episode's description along with some notable show notes from the podcast website:

Season 2 Episode 4 – “The Constitution of the War on Drugs” with David Pozen

In this episode, host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, speak with author and professor David Pozen to discuss his new book, The Constitution of the War on Drugs. In this groundbreaking work, Pozen provides a comparative history lesson on U.S. court cases in which constitutional arguments for drug rights were or were not employed, explains how the Constitution helped to legitimate and entrench punitive drug policy, and offers a constitutional roadmap to drug policy reform that may yet prevail in an increasingly originalist-leaning federal court system.

David Pozen is Charles Keller Beekman Professor of Law at Columbia Law School.

Show notes:

• Purchase The Constitution of the War on Drugs
• Access a free copy of The Constitution of the War on Drugs
• Balkinization blog symposium on The Constitution of the War on Drugs
• Read Perspectives on The Constitution of the War on Drugs: A Collection of Posts from the Balkinization Blog

Because there is so much richness in this podcast discussion and throughout the book, I am disinclined to here highlight any one aspect of the constitutional discussions. And yet, for sentencing fans, I will still flag that Chapter 4 of the book focuses on punishment issues and the Eighth Amendment, closing with this observation and teaser:

Even as American jurists have insisted that scrutinizing the severity of prison sentences is an invitation to lawlessness, the rest of the world has determined that a significantly more ambitious and demanding version of proportionality — one that eschews categorical rules in favor of structured balancing — is a foundation stone of the rule of law. Applying this version of proportionality, apex courts in Africa, Asia, Europe, North America, and South America have limited the penalties that may be applied to a growing set of drug users.  In the concluding chapter, I will return to these cases and to the question of what they might teach the United States.

Supreme Court, by 6-3 vote, rejects claim that mental state expert testimony violated FRE 704(b)

The Supreme Court this morning handed down a short opinion in Diaz v. United States, No. 23-14 (S. Ct. June 20, 2024) (available here).  Justice Thimas authored the opinion for the Court, which starts this way:

Federal Rule of Evidence 704(b) prohibits expert witnesses from stating opinions “about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”  In this drug-trafficking prosecution, petitioner argued that she lacked the mental state required to convict because she was unaware that drugs were concealed in her car when she drove it across the United States-Mexico border.  At trial, the Government’s expert witness opined that most drug couriers know that they are transporting drugs.  Because the expert witness did not state an opinion about whether petitioner herself had a particular mental state, we conclude that the testimony did not violate Rule 704(b).  We therefore affirm.

Justice Jackson authored a concurrence which explains and stresses that "the type of mental-state evidence that Rule 704(b) permits can prove essential not only for prosecutors, but for defendants as well."

Justice Gorsuch authored a dissent joined by Justices Sotomayor and Kagan that starts this way:

Federal Rule of Evidence 704(b) prohibits an expert witness from offering an opinion “about whether the defendant did or did not have [the] mental state” needed to convict her of a crime.  “Those matters,” the Rule instructs, “are for the trier of fact alone.” Following the government’s lead, the Court today carves a new path around that command. There’s no Rule 704(b) problem, the Court holds, as long as the government’s expert limits himself to testifying that most people like the defendant have the mental state required to secure a conviction.

The upshot?  The government comes away with a powerful new tool in its pocket.  Prosecutors can now put an expert on the stand — someone who apparently has the convenient ability to read minds — and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act.  Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict.  What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.

Maryland Governor to issue mass pardons for low-level marijuana offenses estimated to cover over 175,000 convictions

As reported in this Washington Post piece, "Maryland Gov. Wes Moore will issue a mass pardon of more than 175,000 marijuana convictions Monday morning, one of the nation’s most sweeping acts of clemency involving a drug now in widespread recreational use."  Here is more about this high-profile clemency effort:

The pardons will forgive low-level marijuana possession charges for an estimated 100,000 people in what the Democratic governor said is a step to heal decades of social and economic injustice that disproportionately harms Black and Brown people. Moore noted criminal records have been used to deny housing, employment and education, holding people and their families back long after their sentences have been served.

“I’m ecstatic that we have a real opportunity with what I’m signing to right a lot of historical wrongs,” Moore said in an interview. “If you want to be able to create inclusive economic growth, it means you have to start removing these barriers that continue to disproportionately sit on communities of color.”

Moore called the scope of his pardons “the most far-reaching and aggressive” executive action among officials nationwide who have sought to unwind criminal justice inequities with the growing legalization of marijuana. Nine other states and multiple cities have pardoned hundreds of thousands of old marijuana convictions in recent years, according to the National Organization for the Reform of Marijuana Laws....

The pardons, timed to coincide with Wednesday’s Juneteenth holiday, a day that has come to symbolize the end of slavery in the United States, come from a rising star in the Democratic Party and the lone Black governor of a U.S. state whose ascent is built on the promise to “leave no one behind.”...

Maryland’s pardon action rivals only Massachusetts, where the governor and an executive council together issued a blanket pardon in March expected to affect hundreds of thousands of people....

Maryland officials said the pardons, which would also apply to people who are dead, will not result in releasing anyone from incarceration because none are imprisoned. Misdemeanor cannabis charges yield short sentences and prosecutions for misdemeanor criminal possession have stopped, as possessing small amounts of the drug is legal statewide.

Moore’s pardon action will automatically forgive every misdemeanor marijuana possession charge the Maryland judiciary could locate in the state’s electronic court records system, along with every misdemeanor paraphernalia charge tied to use or possession of marijuana. Maryland is the only state to pardon such paraphernalia charges, state officials said.

Part 2 of "Drugs on the Docket" podcast on fake stash-house stings now available

In this post from last week, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had just started releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube.)  As noted in the prior pose, this first episode to kick-off Seanson Two was actually part of a extended discussion that was so chock full of content that it became a two-part series.  And, as detailed on this podcast webpage, today brings the release of the second episode of this new season. which is described this way:

Season 2 Episode 2 – Compassionate release for stash house sting clients with Alison Siegler and Erica Zunkel (Part 2 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, continue their conversation with Alison Siegler and Erica Zunkel.  Part 2 covers how the University of Chicago Law School’s Federal Criminal Justice Clinic pushed the boundaries of criminal defense and leveraged the First Step Act to secure compassionate release for stash house sting defendants who were not part of the clinic’s “criminal class action” litigation.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

As I mentioend before, the many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me.   I remain extremely grateful to have been part of efforts to capture a small parts of amazing stories via these podcasts.  I once again encourage everyone to have a listen.

Prior recent related post:

• Part 1 of "Drugs on the Docket" podcasts on fake stash-house stings now available 

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

A new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

US Sentencing Commission starts releasing latest "Quick Facts" publications

I noticed that the US Sentencing Commission has started releasing a new set of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are the newesr postings by the USSC on the "Quick Facts" page:

Offender Groups

• NEW Individuals in the Federal Bureau of Prisons (May 2024)
• NEW Career Offenders (May 2024)

Drugs

• NEW Drug Trafficking (May 2024)
• NEW Methamphetamine Trafficking (May 2024)
• NEW Fentanyl Trafficking (May 2024)
• NEW Fentanyl Analogue Trafficking (May 2024)

There are any number of interesting factual nuggets in these documents that are fascinating, but I continue to be struck by how much of the federal caseload (and federal prison population) is consumed by drug cases and especially methamphetamine and various opioid. Crack cocaine and marijuana cases, which have long garnered so much attention, are now just a tiny piece of an otherwise still large federal drug war reality.

Part 1 of "Drugs on the Docket" podcasts on fake stash-house stings now available

In this post earlier this week, I previewed that the Drug Enforcement and Policy Center at The Ohio State University was about to start releasing episodes from Season Two of the "Drugs on the Docket" podcast.  Excitingly, as detailed on this podcast webpage, today brought the release of the first episode of this new season.  (And all of the first season's episodes are all still  available via Apple Podcasts and YouTube.)  This first episode to kick-off Seanson 2 is actually part of a extended discussion that was so chock full of content that it became a two-part series described this way at the podcast webpage:

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

The many remarkable legal and policy stories that surround the fake stash-house stings continue to amaze me, and I am extremely grateful to have been part of this effort to tell parts of the story via these podcasts.  I encourage everyone to have a listen.

Thrilled for start to Season 2 of "Drugs on the Docket" podcast

Around this time last year in this post, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six full episodes of this first season, each running under an hour, were released at once (and are all still  available via Apple Podcasts and YouTube).  In fall of last year, the Drugs on the Docket team released, every couple weeks, some bonus "mini-episodes" which followed up on various Season 1 topics (which included the evolution of the crack cocaine sentencing, SCOTUS cases like Ruan v. US and Whren v. US, federal mandatory minimums, and much more).

Since the fall, the DEPC team has been hard at work putting together Season 2 of Drugs on the Docket, which will premire late this week.  Here is how the podcast is described via this podcast webpage along with a preview of the first episode of the new season:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University.  Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.... The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

The Drugs on the Docket podcast is back with Season 2!  This time around, we'll release an episode every two weeks. Episodes unpack ATF sting operations, the history of US drug policies and constitutional law, the revival of the U.S. Sentencing Commission, compassionate release and the 2018 First Step Act, the role of law enforcement in harm reduction, the relationship between stigma and substance use, and more.

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

Release date: Friday, May 31, 2024  

As I have said before, in my (admittedly biased) view, the curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  As I have also said before, because I am eager to see this podcast continue to develop and audience (and also because my colleagues at DEPC have worked extremely hard to put this content together), I am sure to keep using this space to encourage everyone to check out new Season 2 (and old Season 1) in the coming weeks.  

Interesting 6-3 split in ruling for feds in reach of ACCA covering state drug convictions

Regular readers know the Armed Career Criminal Act (ACCA) is a messy statute that has divided the Supreme Court for decades regarding how to categorize various prior convictions as possible triggers for ACCA's 15-year mandatory minimums.  Another divided Supreme Court opinion was handed down in this arena today  in Brown v. US, No. 22–6389 (S. Ct. May 23, 2024) (available here). The opinion for the Court was authored by Justice Alito, and it starts this way:

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules.  ACCA imposes a 15-year mandatory minimum sentence on defendants who are convicted for the illegal possession of a firearm and have a criminal history that is thought to demonstrate a propensity for violence.  These defendants are subject to ACCA’s enhanced penalty if, among other things, they have “three previous convictions” for “a serious drug offense.” 18 U.S.C. §924(e)(1).  For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment, and it must “involv[e] . . . a controlled substance . . . as defined in section 102 of the Controlled Substances Act” (CSA). §§924(e)(1), (2)(A)(ii). The CSA, in turn, includes five schedules of controlled substances and provides that these schedules must be updated each year by the Attorney General. 84 Stat. 1245, 1247, 21 U. S. C. §§811, 812.

The two cases now before us present the question whether a state crime constitutes a “serious drug offense” if it involved a drug that was on the federal schedules when the defendant possessed or trafficked in it but was later removed.  We hold that such an offense qualifies. 

Intriguingly, five other Justices joined Justice Alito's opinion for the Court, but not the "usual suspects" when there are 6-3 divides on this Court. In this iteration, Justice Sotomayor joins the marjoirty in this ruling for the government, whereas Justice Jackson wrote a dissenting opinion, in which Justice Kagan and Gorsuch joined (though the latter joined only as to Parts I, II, and III of the dissent). Here is how the dissent gets started:

The Court maintains that, “[s]tanding alone,” the text of 18 U. S. C. §924(e)(2)(A)(ii) “does not definitively answer” the question presented in these cases. Ante, at 7. Instead, says the majority, we must look beyond the text to precedent, statutory context, and purpose — which apparently converge to persuade the majority that §924(e)(2)(A)(ii) requires sentencing courts to apply the drug schedules in effect at the time of a defendant’s prior state drug conviction when determining the applicability of the 15-year mandatory minimum in the Armed Career Criminal Act (ACCA). But the relevant text does definitively answer the question presented here. And it establishes that courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA’s potential application. Nothing else — not precedent, context, or purpose — requires a different result. Therefore, I respectfully dissent.

I am hopeful, but not especially optimistic, that a faculty meeting and other commitments will not prevent me from fiding time in short order to review these opinions closely.

Event at Villanova this week follows up Federal Sentening Reporter issue on "Drug Testing and Community Supervision"

I am pleased here to be able to highlight both the latest issue of the Federal Sentencing Reporter and this event slated for this Wednestday (5/22) at Villanova Law serving as a follow up to this FSR issue.  This FSR issue is titled "Drug Testing and Community Supervision: Interrogating Policy, Practice, and Purpose," and it includes nearly a dozen original articles looking drug testing of persons while on community supervision from a variety of perspectives.  Here are the Editors' Notes previewing the contents of the FSR issue:

The supervision of individuals serving probation and parole never receives quite the same attention as incarceration topics, but millions of persons in our communities deal with these realities every day.  In particular, drug testing for persons on community supervision affects many of the nearly four million people on probation and parole in the United States, even though the justification for its use and its burdens are not always clear and rarely subject to significant scrutiny.  This issue of FSR, which results from the collaborative efforts of Arnold Ventures, the Center for Justice Innovation, the Drug Enforcement and Policy Center at The Ohio State University, and the Villanova University Charles Widger School of Law’s Girard-diCarlo Center for Ethics, Integrity and Compliance, takes a closer look at what an evidence-driven and humane approach to drug testing under supervision might look like.  The FSR editors are grateful for the collaborative efforts that helped produce this issue, and we extend special thanks to Matt Watkins and Oliva Kramer of the Center for Justice Innovation for their efforts assembling and editing the articles that comprise this issue.

And here is the registration page for the Vilanova Law event, which provides these (and other) particulars:

"Testing Justice: Drug Testing and Community Supervision"

Presented by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance Wednesday, May 22, 4:00–6:00 p.m.

In an effort to address and shape public conversations about criminal justice, drug policy and enforcement, the Girard-diCarlo Center will host a discussion on Wednesday, May 22 at Villanova Law. “Testing Justice: Drug Testing and Community Supervision” is a continuation of the conversations held at the convening in November 2023, the recent issue of the Federal Sentencing Reporter and the ethics, policies and laws surrounding drug enforcement in Pennsylvania.

The Pennsylvania Continuing Legal Education Board has approved this symposium for 1.5 Substantive CLE credits. Please note registration is required to receive CLE credit.  A reception will follow the event in the Ambassador David F. Girard-diCarlo ’73 and Constance B. Girard-diCarlo ’74 Student Lounge.

4:30–6:00pm Panel: The Pennsylvania Experience

• Sen. Camera Bartolotta, Pennsylvania State Senate for the 46^th District
• Jordan Hyatt, Director of the Center for Public Policy & Associate Professor of Criminology and Justice Studies, Drexel University
• LaTonya Myers, Founder, Above All Odds
• N. Jeannette Palmer-Briscoe, Chief Probation/Parole Officer, Philadelphia Adult Probation & Parole Department
• Sen. Anthony Williams, Pennsylvania State Senate for the 8^th District
• Moderated by Steven Chanenson, Faculty Director of the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance & Professor of Law, Villanova Law

Split Supreme Court limits the extent of hearings required in civil forfeiture proceedings

The Supreme Court this moring issued a series of opinion in Culley v. Marshall, No. 22-585, concerning the process that is due in civil forfeiture proceedings.   This Culley ruling limits, by a 6-3 vote along the usual ideological lines, what is constitutionally required.  Justice Kavanaugh authored the opinion for the Court, which is relatively short and starts this way:

When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitutionequires a timely forfeiture hearing. The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court’s precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing.

Justice Gorsuch, joined by Justice Thomas, authored an extended concurrence that starts this way:

I agree with the Court that, at a minimum, the Due Process Clause requires a prompt hearing in civil forfeiture cases. Ante, at 5.  I agree that no legal authority presented to us indicates a prompt hearing must necessarily take the form Ms. Culley and Ms. Sutton suppose. Ante, at 6. I agree, too, that Mathews v. Eldridge, 424 U. S. 319 (1976), does not teach otherwise.  Ante, at 9.  Under its terms, judges balance “the private and governmental interests at stake,” Mathews, 424 U. S., at 340, to determine “what procedures the government must observe” when it seeks to withhold “benefits” “such as welfare or Social Security,” Nelson v. Colorado, 581 U. S. 128, 141 (2017) (ALITO, J., concurring in judgment).  That test does not control — and we do not afford any particular solicitude to “governmental interests” — in cases like this one where the government seeks to deprive an individual of her private property.  But if all that leads me to join today’s decision, I also agree with the dissent that this case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.  I write separately to highlight some of them.

And Justice Sotomayor, joined by Justices Kagan and Jackson, authored an extended dissent that starts this way:

A police officer can seize your car if he claims it is connected to a crime committed by someone else. The police department can then keep the car for months or even years until the State ultimately seeks ownership of it through civil forfeiture. In most States, the resulting proceeds from the car’s sale go to the police department’s budget. Petitioners claim that the Due Process Clause requires a prompt, post-seizure opportunity for innocent car owners to argue to a judge why they should retain their cars pending that final forfeiture determination. When an officer has a financial incentive to hold onto a car and an owner pleads innocence, they argue, a retention hearing at least ensures that the officer has probable cause to connect the owner and the car to a crime.

Today, the Court holds that the Due Process Clause never requires that minimal safeguard. In doing so, it sweeps far more broadly than the narrow question presented and hamstrings lower courts from addressing myriad abuses of the civil forfeiture system. Because I would have decided only which due process test governs whether a retention hearing is required and left it to the lower courts to apply that test to different civil forfeiture schemes, I respectfully dissent.

A faculty meeting and other commitments my prevent me from having all the time I need to consume and comment on these opinions.  But this looks quite interesting and I hope to be able to share some thoughts before too long.

Prez Biden issues 11 pardons and five commutations to persons "convicted of non-violent drug offenses"

As stated in this press release from the White House, "President Joseph R. Biden, Jr. is using his authority under the Constitution to advance equal justice under law by granting clemency to 16 deserving individuals who were convicted of non-violent drug offenses." The release provide the names and various details about all the clemency recipients, though more background information is given concerning the 11 pardon recipients, and the basic sentence information is provided for the five persons who recieived prison sentence commutations. In this document, titled "Statement from President Joe Biden on Clemency Actions," comes this explanation:

America is a Nation founded on the promise of second chances. During Second Chance Month, we reaffirm our commitment to rehabilitation and reentry for people returning to their communities post incarceration.  We also recommit to building a criminal justice system that lives up to those ideals and ensures that everyone receives equal justice under law. That is why today I am announcing steps I am taking to make this promise a reality.

I am using my clemency power to pardon 11 individuals and commute the sentences of 5 individuals who were convicted of non-violent drug offenses. Many of these individuals received disproportionately longer sentences than they would have under current law, policy, and practice. The pardon recipients have demonstrated their commitment to improving their lives and positively transforming their communities. The commutation recipients have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.

Like my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety. While today’s announcement marks important and continued progress, my Administration will continue to review clemency petitions and deliver reforms in a manner that advances equal justice, supports rehabilitation and reentry, and provides meaningful second chances.

The Department of Justice also has this list of the clemencies. It looks like most, but not quite all, of these clemency recipients were convicted and sentenced for crack offenses, with some of the pardon recipient crimes going back in the 1990s.  Most of the commutations are for folks given decades of imprisonment in the 2010s.

A little interesting coverage of an interesting SCOTUS argument on drug mule case experts

Though Supreme Court action regarding Texas immigration enforcement was the story grabbing most of the headlines yesterday, Tuesday also brought an interesting SCOTUS oral argument in Diaz v. US.  Diaz concerns whether government expert testimony about what drug mules may know is problematic under the Federal Rules of Evidence, and the (little) press about the argument highlights its intrigue:

From Bloomberg Law, "Justices Search for Sweet Spot on Testimony on Criminal Mind"

From NBC News, "Supreme Court wrestles with dispute over expert testimony in drug 'mule' case: Delilah Guadalupe Diaz says testimony that she likely knew of the presence of drugs in her vehicle when she was stopped at the border unlawfully undermined her defense."

From Reuters, "U.S. Supreme Court Divided Over ‘Blind Mule’ Border Drug Smuggling Case from California"

From the San Diego Union-Tribune, "Supreme Court considers criminal intent in arguments in San Diego 'blind mule' drug courier case"

Masschusetts Gov announces plans for mass pardon of all misdemeanor marijuana possession convictions in state

As repotted in this local article, Masschusetts "Gov. Maura Healey on Wednesday unveiled plans to pardon all people convicted of simple marijuana possession in Massachusetts." Here is more:

Her pardon was met with a round of applause from state elected officials, criminal justice reform advocates, people impacted by simple possession convictions and members of law enforcement who joined Healey for the announcement on the grand staircase steps inside the Massachusetts State House.  Though the exact number is unknown, Healey's office said the pardon could affect "hundreds of thousands" of people in Massachusetts.

Healey's pardon forgives all state court misdemeanor convictions for possession of marijuana before March 13, 2024. It does not apply to charges of distribution, trafficking, or operating a motor vehicle under the influence. Healey said the pardon will be automatic for most people, but those who need proof of the pardon before their record is updated or believe they may have been passed over can apply through an online form.  The plan still needs sign-off from the Governor's Council, the elected eight-member body that approves pardons and judicial confirmations.

Healey said the decision was about equity, noting that communities of color have been disproportionately targeted by law enforcement for drug possession. A 2016 report from the ACLU of Massachusetts found that while Black people represented only 8% of the state's population, they comprised 24% of marijuana possession arrests. "We can be certain that this pardon will redress some of the harm those disparities have caused in Massachusetts and we'll continue to do all that we can to eliminate racial injustice throughout our systems," Healey said.

Middlesex District Attorney Marian Ryan said the move is a prime example of how the state has been reforming the criminal justice system. “We've been working really hard in Massachusetts to be much more thoughtful about how can we really be smart about preserving public safety, but at the same time lessening the impact of the criminal system on people's lives," Ryan told WBUR. "And being able to do this is an important part of that.”

Healey in her 2022 campaign for governor had promised to pardon state convictions for simple marijuana possession. This week's announcement came after President Biden ordered pardons for people with federal simple possession convictions, and encouraged governors across the country to do the same.

People in Massachusetts are already able to expunge certain marijuana-related convictions after a landmark 2018 criminal justice reform law. But advocates criticize the process as bureaucratic and inaccessible, and multiple reports find it's rarely used. Past marijuana convictions and charges — even charges that were eventually dismissed — can show up on background checks, making it hard for those affected to secure jobs or housing....

Several members of the Governor's Council stood behind Healey during her announcement Wednesday. "It's the right thing to do," council member Paul DePalo said after the speech. "I can't speak for the other members but I do know that I'm not the only one who's enthusiastic about this." The Governor's Council is set to meet again at the end of the month.

An official press release from the Governor's office, titled "Governor Healey Announces Nation-Leading Effort to Pardon Marijuana Possession Misdemeanor Convictions," is available at this link.  In addition, the Governor’s Office has made available this FAQ about this proposed pardon plan. 

On Pulsifer watch again after SCOTUS indicates opinions are coming to close this week.

Regular readers likely recall that I have been watching closely the Supreme Court sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of the Act's expansion of the safety-value mandatory minimum exception — has long been needed and has been a long time coming.

Pulsifer was argued before SCOTUS back in early October 2023 on the very first day of its current Term, and it is relatively rare for a lower-profile case from the start of the Term to still be unresolved by now.  That said, the Justices have been notably slow to issue opinions this Term, and all sorts of emergency matters have surely impacted their usual work flow.   Still, today the SCOTUS hopepage includes a notice that the "Court may announce opinions on Friday, March 15."  This is Court-speak alerting us to the fact that they will hand down at least one opinion (and likely more) Friday morning at 10am, though how many and which one are still matters for speculation.

The last time I was on Pulsifer watch, in early February, I correctly speculated it was likely a bit too soon to expect an opinion given that the oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  That reality might still caution against getting hopes up for the Pulsifer opinion this Friday.  Also, though long in coming, there is no obvious time urgency to Pulsifer that might lead the Justices to want to relese this opinion on a Friday rather than just wait until the following week.  But with so much work ahead for the Justices, perhaps the Ides of March might prove to be just the right time for this ruling.  As the Bard of Avon migh caution: "beware."

A few prior related posts about SCOTUS Pulsifer case:

• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 
• Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve 
• Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term
• On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US 
• Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case
• With possible opinions this week, might SCOTUS soon answer if "and" means "or" in Pulsifer safety valve case?

Defender groups file FOIA seeking records on DOJ's implementation of December 2022 charging and sentencing memos

As reported in this press release, yesterday the "American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Federal Public & Community Defenders submitted a Freedom of Information Act (FOIA) request ... seeking public records detailing the Department of Justice’s implementation of December 2022 memoranda establishing new policies for all federal prosecutors’ charging and sentencing practices."  Here is some context from the press release:

On Dec. 16, 2022, Attorney General Merrick Garland issued two memoranda requiring federal prosecutors to make important changes in how they litigate criminal cases.  These changes include charging crack cocaine offenses like powder cocaine offenses in order to avoid unwarranted and racially disparate sentencing outcomes; and reserving charges that carry a mandatory minimum sentence for cases in which the other charges (i.e., those for which the elements are also satisfied by the accused person’s conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the person’s alleged criminal conduct, danger to the community, or harm to victims.

The new policies have been in effect for over one year, but the Federal Public & Community Defenders have received information from attorneys in multiple federal court districts indicating that federal prosecutors are not uniformly abiding by the two memoranda....

The ACLU, NACDL, and FPD seek wide ranging information on implementation of the memoranda, including:

• Data collected in software developed by the Justice Department to track charges brought by the DOJ that include mandatory minimum sentences, and related policy directives and training materials;
• Information related to compliance with the memoranda, including the percentage of charging documents and plea agreements that include charges with mandatory minimum sentences; and
• Further guidance the Justice Department has issued to ensure federal prosecutors seek equal treatment for crack and powder cocaine offenses through their charging and sentencing practices.

The FOIA request highlights the impact, if properly implemented, of the memoranda’s requirement that federal prosecutors exercise greater restraint in using mandatory minimums.  “Reducing the use of mandatory minimums can also ameliorate racial disparities in the sentence lengths between similarly situated Black and white federal defendants. Research has shown that ‘[t]he initial mandatory minimum charging decision alone is capable of explaining more than half of the black-white sentence disparities not otherwise explained by pre-charge characteristics,’” the request reads.

The full 18-page FOIA request is available at this link.

Prior related posts:

• US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine
• Wondering about the impact of AG Garland's new charging and sentencing memos 

New Bureau of Justice Statistics report details "Heroin, Fentanyl, and Other Opioid Offenses in Federal Courts, 2021"

It is sometimes said that the wheels of justice turn slowly, and a new report provides an excuse to also note that the statistics of justice in federal courts often emerge slowly. This not-so-pithy observation is prompted by the emails I received today highlighting this new report from DOJ's Bureau of Justice Statistics titled "Heroin, Fentanyl, and Other Opioid Offenses in Federal Courts, 2021." Still, somewhat dated data is better than no data at all, and here is how the 24-page report gets started:

During fiscal year (FY) 2021, the Drug Enforcement Administration (DEA) made 3,138 arrests for fentanyl, 2,591 arrests for heroin, and 676 arrests for other opioid offenses.1 In FY 2021, for the first time, the number of arrests by the DEA for fentanyl (3,138) surpassed the number of arrests for heroin (2,591).  From FY 2020 to FY 2021, there was a 36% increase in arrests made by the DEA for fentanyl and a 29% decrease in arrests for heroin (table 1).  This report uses data from the Bureau of Justice Statistics’ (BJS) Federal Justice Statistics Program (FJSP) to describe persons arrested, convicted, and sentenced for federal drug offenses involving heroin, fentanyl, and other opioids....

N.1 Annual federal justice data are reported for the fiscal year, which is from October 1 to September 30.

HIGHLIGHTS

• From FY 2020 to FY 2021, the number of drug arrests the Drug Enforcement Administration (DEA) made for fentanyl increased by 36% from 2,305 to 3,138.
• In FY 2021, for the first time, the number of drug arrests the DEA made for fentanyl (3,138) surpassed the number of arrests for heroin (2,591).
• Of the 28,224 total drug arrests by the DEA in FY 2021, 3,138 (11%) were for fentanyl, 2,591 (9%) were for heroin, and 676 (2%) were for other opioids.
• DEA arrests for heroin, fentanyl, and other opioids increased from 4,830 in FY 2001 to a peak of 8,258 in 2015 and declined to 6,405 in FY 2021.
• In FY 2021,
  • 97% of persons sentenced for a drug offense involving opioids were sentenced for drug trafficking.
  • most persons sentenced for drug offenses involving heroin (89%) or fentanyl (87%) had a prior criminal history at sentencing.
  • persons sentenced for drug offenses involving heroin or fentanyl received a median prison term of 46 months, persons sentenced for oxycodone received a median prison term of 26 months, and persons sentenced for hydrocodone received a median prison term of 24 months.

"Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"

The title of this post is the title of this new article now available via SSRN authored by Laura Ginsberg Abelson.  Here is its abstract:

The legal landscape surrounding firearm possession is evolving rapidly.  In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle and Pistol Association v. Bruen.  Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with one notable exception: felon-in-possession laws.  This paper examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior, possession of a firearm, that is constitutionally protected for everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the war on drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal.  I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the war on drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court is currently considering how to assess the question of danger in relation to the Second Amendment in United States v. Rahimi.  I argue that as Second Amendment jurisprudence evolves, prosecutors and legislators must be cognizant of the lasting effects of the war on drugs, and question the assumption that a prior felony conviction is an accurate proxy for dangerousness.

With possible opinions this week, might SCOTUS soon answer if "and" means "or" in Pulsifer safety valve case?

Regular readers likely recall that I have been watching closely the SCOTUS sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The unclear statute at issue in Pulsifer became law in 2018, was dividing circuits by 2021,and the Pulsifer cert petition was filed in October 2022 and granted by SCOTUS in February 2023.  (In addition, the US Sentencing Commission felt compelled in 2023 to build guideline amendments around the statutory ambiguity.)  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of an expansion of the safety value mandatory minimum exception — has long been needed and has been a long time coming.

But the Supreme Court has now indicated that on Thursday, the day the Justices are scheduled to hear oral argument on whether Donald Trump is now constitutionally ineligible to be President, it "may announce opinions."  I think that means we will definitely get at least one opinion, though how many and which one are left as matter of speculation.  So, in this post, I am speculating on the chances that we could get Pulsifer this week.  And though I am wishing hard that the Pulsifer opinion is just days away, and even though the Pulsifer oral argument was the very first of this current Term, I am not getting my hopes up.

The Justices have been notably slow in the release of opinions this Term, and Adam Feldman here at Empirical SCOTUS has some great data and thoughts on opinion pacing.  So, it wil not surprise me if we were to get only one or two opinions this week.   And, historically, the opinions that get handed down "earlier" are those that are unanimous or nealy unanimous.  The oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  Though I suspect we will get Pulsifer within the next few months and not have to wait until late June, I would not place a prop bet that it's coming this week.  But it would be cool to be proven wrong with this prognostication.

A few prior related posts about SCOTUS Pulsifer case:

• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 
• Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve 
• Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term
• On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US 
• Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case

Notable whimper for end of decades long federal prosecution of California medical marijuana dispensary owner

As detailed in posts linked below, nearly 15 years ago, I blogged a bit about some interesting sentencing developments in the federal prosecution of Charles Lynch, a fellow who ran a medical marijuana dispensary in California.  This new Los Angeles Times piece, headlined "He opened a medical pot dispensary in California. The feds spent 16 years prosecuting him," details that the case is only now reaching a resolution.  One needs to read the full piece to get the full story, but here are excerpts to whet appetites:

For nearly 17 years, the federal government has been after Charles Lynch for running a medical marijuana dispensary. Prosecutors refused to drop their criminal case against him even as marijuana became fully legal in California and 23 other states. They refused to let it go when Congress forbade the Department of Justice from using its funds to criminally prosecute medical marijuana activities that were consistent with state law.

Prosecutors have pursued Lynch’s case — which involves conflicting state and federal marijuana laws — through appeals and delays and criticisms that they were spending too many resources on a case that meant so little. “Twenty-five percent of my life,” Lynch, now 61, said in a Southern drawl at a hearing in downtown Los Angeles this month.

When federal authorities launched their probe in 2007, George W. Bush was in the White House and Lynch was a respected businessman in Morro Bay with a three-bedroom ranch-style house in nearby Arroyo Grande. These days, he struggles financially, lives in a single-wide trailer on his mom’s property in New Mexico and strains to remember the details of the marijuana operation that got him in so much trouble....

Lynch and his lawyers have portrayed the case as a pointless exercise by the Department of Justice that has cost taxpayers — who are footing the bill for both the prosecution and his public defenders — millions of dollars. Even the federal judge has expressed impatience, telling the prosecutor: “At some point in time, this case has to be resolved.”

Why the federal government continued to pursue the case so ardently remains unclear — even this week, when it took a new twist that caught everyone involved by surprise.

Prior related posts from 2009:

• Maui wowie: pot sentencing impacted by new federal policy
• Sentencing in medical marijuana case impacted by statutory minimums
• Pot dispensary owner scheduled to be finally sentenced... (and gets a year in prison) 

New stories suggesting that new west-coast legal approaches failing in face of scourge of fentanyl

A couple of notable press pieces this morning highlight data and developments indicating that the harms of the fentanyl crisis are growing in two notable jurisdictions that have been pursuing less punitive approaches to drug policy.  First, news from Oregon:

"In downtown Portland’s fentanyl crisis, Oregon leaders declare emergency"  Snippets:

Multnomah County, the city of Portland and the state of Oregon are embarking on a 90-day experiment to address downtown Portland’s fentanyl crisis. Tuesday, the three governments jointly declared a fentanyl emergency, directing their agencies to work alongside each other on programs that connect people addicted to the synthetic opioid with treatment programs and to crack down on drug sales....

The declaration comes years after fentanyl rooted itself in the region, spurring deaths, addiction and violent crime. According to Multnomah County, the number of overdose fatalities involving fentanyl increased 533% between 2018 and 2022 in the county. The region has also experienced a serious shortage of substance use treatment providers and recovery centers — despite the 2020 passage of a ballot measure meant to fund new drug treatment programs across Oregon. Measure 110 also decriminalized small amounts of illicit drugs, an aspect that state lawmakers are aiming to renegotiate in this year’s legislative session, which begins next week....

Max Williams, the former state lawmaker who also previously led the Oregon Corrections Department, issued a statement saying the emergency was a good start. “But a permanent fix to Measure 110 is necessary,” he said, citing the 2020 drug decriminalization measure. Williams, with the Coalition to Fix & Improve Measure 110, which is considering a ballot measure this fall, said the state “needs to recriminalize possession of fentanyl and other hard drugs as a Class A misdemeanor to help save lives and rescue communities.”

Second, the New York Times has this lengthy new piece exploring reasons why San Francisco has not been able to replicate the success that Portugal has seen with less punitive drug policies. This piece's full headline reads: "Can San Francisco Solve Its Drug Crisis? Five Things to Consider. A comparison with Portugal’s approach to decriminalization shows why many liberal cities have struggled to match its success."  I highly recommend this piece in full, and here is its start:

San Francisco is in the middle of a drug crisis.  Overdose deaths reached a record high last year, topping 800.  Public drug use is widespread in some neighborhoods.  How did San Francisco get to this point? In part, it follows the national story: The rise of fentanyl, a synthetic opioid, and a destabilizing pandemic caused a spike in addiction and overdose deaths.

But San Francisco’s drug crisis has outpaced the country’s. In 2014, the city’s overdose death rate was roughly in line with the national average. As of last year, its rate was more than double the national average, and San Francisco was No. 4 for overdose deaths among U.S. counties with more than 500,000 people. The country’s overdose crisis worsened over the past decade as fentanyl spread, but San Francisco’s worsened much more quickly.

Local policy changes are partly to blame, some experts say. In 2014, California voters passed Prop 47, reducing drug possession to a misdemeanor from a felony.  Different parts of the state have interpreted the change differently.  In San Francisco, law enforcement has responded by scaling back efforts against drugs, de-emphasizing incarceration and effectively allowing public drug use.

Those who support at least partial decriminalization often cite the experience of Portugal, which decriminalized all drugs more than two decades ago and then saw a decline in drug-related problems.  In 2019, the San Francisco district attorney at the time, George Gascón, even visited Portugal to learn more.  But while San Francisco and other liberal cities have embraced some aspects of Portugal’s decriminalization laws, they have struggled to replicate Portugal’s success.

The comparison with Portugal is not perfect. For one, fentanyl has not taken over Portuguese drug markets, and has a relatively small presence in Europe as a whole.  Still, the comparison gives a way to think about the challenges that San Francisco and other cities have faced.  Those challenges can be broken down into five parts, each touching on a different aspect of drug policy.

"Policing Substance Use: Chicago's Treatment Program for Narcotics Arrests"

The title of this post is the title of this recent paper I just came across on SSRN authored by Ashna Arora and Panka Bencsik. Here is its abstract:

In the United States, law enforcement officers serve as first responders to most health crises, allowing them to connect many more individuals to treatment services than other government actors, a fact that has come into increasing focus due to the opioid epidemic.  In response, police departments across the country have begun to divert individuals that possess narcotics away from arrest and towards treatment and recovery.  Evidence on whether these programs are able to engender meaningful change — initially by increasing participation in substance use treatment, and eventually by reducing the likelihood of continued drug use and criminal justice involvement — remains limited.

This paper aims to shed light on the potential of these programs by exploiting the eligibility criteria for and staggered rollout of narcotics arrest diversion in Chicago between 2018 and 2020 using a triple difference framework.  We find that the program reaches individuals with medically diagnosed substance use disorders, increases connections with substance use treatment, and reduces subsequent arrests.  We conclude that Chicago’s drug diversion program is able to simultaneously reduce the reach of the criminal justice system, expand the number of individuals with substance use disorders connected with treatment, and improve public safety.

In a different context, some more notable circuit caterwauling over the categorical approach to criminal history

In this post a few days ago, I flagged the notable opinion from a Third Circuit judge in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here), lamenting the ugly story of the Armed Career Criminal Act's reliance on the "categorical approach" to assess criminal priors required by Supreme Court precedent.   Today, I see a Second Circuit jurist authoring a distinct chapter of this ugly story in a different sentencing context.  Concurring in US v. Chaires, No. 20-4162 (2d Cir Dec. 7, 2023) (available here), Judge Sullivan explains why he thinks his circuit has it all wrong in its approach to "the 'controlled substance offense' predicate to U.S.S.G. § 4B1.1 — the career offender enhancement."  Hard-core sentencing fans may be uniquely able to work through the whole opinion, but it is worth the full read.  And Judge Sullivan's opinion ends this way:

Given the Commission’s indecision and the Supreme Court’s reluctance, I think it imperative that the courts of appeal converge on the best reading of the career offender enhancement.  To my mind, there can be little doubt which of the two options is that best reading.  The state-dependent approach is firmly grounded in section 4B1.2(b)’s text and will permit a relatively straightforward inquiry.  The categorical approach lacks any foothold in that text, has proven to be hopelessly difficult to administer, and illogically disqualifies untold numbers of state and federal narcotics convictions from serving as predicate offenses — even though those convictions were in fact premised on a federally controlled substance.  For these reasons, I continue to believe that section 4B1.2(b) calls for a state-dependent approach to controlled substance offenses, as six of our sister circuits have already held.  See Jones, 81 F.4th at 599 n.5.  I therefore urge the Second Circuit to correct this error through an en banc or mini en banc proceeding that would overrule our currently binding precedent in Townsend and bring us in line with the majority of circuits to have addressed this issue.   

"Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Center and authored by Margaret Love and Nick Sibilla. Here are parts of the report's introduction:

This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act. PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms. Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms. Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research. Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming. We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project.

Notable grant of compassionate release, supported by prosecutors, for drug prisoner serving mandatory life

A helpful reader made sure I saw a notable new grant of compassionate release in US v. Vanholten, No. 3:12-cr-96-RBD-MCR (MD Fla. Dec. 1, 2023) (available here).  The 15-page opinion is worth a full read, and here is the start of the opinion and the heart of the ruling:

Mr. Vanholten is serving a life sentence for trafficking cocaine, in essence, because he sold two dime bags of marijuana, $20 worth, to two undercover police officers when he was nineteen years old.  In January 2012, he was pulled over on I-95 northbound while driving in tandem with another car carrying ten kilograms of cocaine in the trunk.  Investigators linked Mr. Vanholten to the cocaine, leading to his arrest and indictment on one count of aiding and abetting the possession and intent to sell over five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2.  The Government filed a 21 U.S.C. § 851 information advising the Court that Mr. Vanholten had a prior felony drug conviction — a 2006 federal charge for possession of 250 grams of cocaine with intent to distribute — which enhanced the mandatory minimum penalty to twenty years for his crime. He remained in custody after his arrest pending trial.

Plea negotiations broke down because Mr. Vanholten would not say “where [the cocaine] came from and where it was going.”  In turn, the Government amended the § 851 notice to add a second prior drug felony — the previously mentioned 1996 marijuana offense — which upped the mandatory minimum to life in prison. Despite the looming prospect of life behind bars, the case went to trial.  On August 3, 2012, a jury convicted Mr. Vanholten of the indicted charge.

Bound by the § 851 enhancement, this Court imposed a term of life imprisonment on November 19, 2012, to be followed with ten years of supervised release.  In its remarks, the Court expressed it “would not impose a life sentence but would impose a sentence of a significant period of incarceration” if it had any discretion to do so. Mr. Vanholten has remained incarcerated with the Federal Bureau of Prisons (“BOP”) ever since.....

First, extraordinary and compelling reasons exist where the defendant (1) is suffering from a serious physical or medical condition that (2) substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and (3) from which he is not expected to recover. U.S.S.G. § 1B1.13(b)(1)(B)(i). Though he is not at death’s door, Mr. Vanholten’s medical records show that his sarcoidosis is both chronic and persistent, hurting his lungs and pulmonary function....

Second, Mr. Vanholten also presents a combination of circumstances that, considered with his health, are “similar in gravity” to the other reasons explicitly listed in subsections (b)(1)–(4) of the policy statement. See U.S.S.G. § 1B1.13(b)(5) (newly amended catch-all provision). As discussed, his deteriorating health is a serious medical condition. His rehabilitation and clean disciplinary history while incarcerated are remarkable. And it is extraordinary that the Government supports Mr. Vanholten’s release and clemency application. In the words of the parties, these factors, “combined with length of time he has already served in the BOP, and the reduced mandatory minimum sentence he would face today, together are ‘similar in gravity’ to the circumstances of U.S.S.G. § 1B1.13(b)(1)–(4),” and so establish extraordinary and compelling 13 reasons for release.5 (Doc. 96, ¶ 8.)

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

Supreme Court grants cert on federal drug case concerning expert testimony on defendant's knowledge

This morning brings this new Supreme Court order list that finally has something interesting for criminal justice fans.  Actually, there are two matters of interest, a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  In this post I will cover the cert grant and follow up with a separate post on the cert denial.

The cert grant comes in Diaz v. US, and John Elwood here at SCOTUSblog effectively summarized this case last week after it prompted a relist:

Delilah Diaz was stopped returning from Mexico to her home in California.  Officers were suspicious that Diaz’s window made a “crunching” noise when she rolled it down, so they searched the car and found nearly 28 kilograms of methamphetamine — worth almost $400,000 — in the door panels.  Diaz said that she had borrowed the car from her boyfriend and did not know about the drugs.  At her trial, prosecutors called a law-enforcement agent as an expert witness to testify that in most cases, couriers know they are transporting large quantities of drugs across the border and that traffickers rarely risk the potential of large losses on “blind mules” — couriers who are unaware what they’re carrying. Diaz was convicted.

On appeal, Diaz argued that the testimony was inconsistent with Federal Rule of Evidence 704(b), which states that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged,” which is a question “for the trier of fact alone.” The U.S. Court of Appeals for the 9th Circuit affirmed Diaz’s conviction.  It concluded that Rule 704 only bars expert witnesses from stating an express opinion about whether a particular person knew they were committing a crime, not from stating general opinions about similar defendants and the likelihood of their culpability.

Diaz has now petitioned the Supreme Court for review.  She argues that that the testimony would have been thrown out in the U.S. Court of Appeals for the 5th Circuit, which has held that such testimony is inadmissible.  The 5th Circuit, she notes, includes Texas and, therefore, nearly all of the rest of the southern border, and she argues that the conflict between two border states’ appellate courts must be resolved. The government acknowledges a “disagreement between the Fifth Circuits and other circuits” but it contends that any disagreement “does not warrant this Court’s review.”  The 5th Circuit’s test, the government claims, is heavily “fact dependent.”  The government also argues that any error from admitting the agent’s testimony was harmless because the evidence of guilt in Diaz’s case was strong, because her story was “flimsy”: She didn’t know where her supposed boyfriend lived or his phone number, and although she claimed to dislike driving at night, she arrived at the border at 2 a.m. 

Here is how the petition for cert presents the question in Diaz:

Federal Rule of Evidence 704(b) provides: “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed. R. Evid. 704(b).

The question is: In a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

Former Prez Trump again talking up the death penalty as a way to address drug problems

Back in March 2018, as noted in this post, then Prez Donald Trump started talking up the idea of the death penalty for drug dealers as part of his stump speeches.  Way back then, I noted that constitutional questions about any such law would be sure to reach the Supreme Court and also that, at that time, there had not been any federal execution for well over a decade.  I also noted that the then-GOP-controlled Congress was working on a sentencing reform bill that could have been a vehicle for adding his Trump's capital sentencing idea.  

Fast forward five+ years, and now Prez-candidate Donald Trump is again talking up the idea of the death penalty for drug dealers as part of his stump speeches.   This Hill article, headlined "Trump doubles down on death penalty for drug dealers," explains:

Former President Trump doubled down on calling for the death penalty for drug dealers Saturday. “President Xi in China controls 1.4 billion people, with an iron hand, no drug problems, you know why they have no drug problems?” Trump said at a campaign event in New Hampshire Saturday. “Death penalty for the drug dealers.”

“You want to solve your drug problem, you have to institute a meaningful death penalty for… a drug dealer,” the former president continued.

This isn’t the first time the former president has called for the death penalty for drug dealers.  Back in June, Trump notably advocated for drug dealers getting the death penalty in a Fox News interview, despite the fact it would have applied to Alice Johnson, a woman whose sentence Trump commuted in 2018.

Though I consider Trump's comments to be more political posturing than policy proposal, I am struck by how the legal landscape has changed since I was commenting about these ideas back in March 2018.  With Justices Kennedy and Ginsburg replaced by (Trump-appointees) Justices Kavanaugh and Barrett, the current Supreme Court seems much more likely to uphold broader applications of the federal death penalty.  I make that statement in part because these Justices expressed no concerns about the 13 federal executions that were carried out in the final six months of Trump's presidency.  And, of course, the sentencing reform bill I was talking about in March 2018 became the FIRST STEP Act that was signed into law by Trump toward the very end of that year.  (Might Trump sometime start describing his "Death penalty for the drug dealers" proposal as a second step in sentencing reform?)     

Prior related posts from 2018:

• Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"
• Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers" 
• Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed? 

Plugging again the "Drugs on the Docket" podcast (with updated content) before hitting road

I will be on the road (and often offline) over the next couple weeks, and so it seems like a great time to flag again recent work of the Drug Enforcement and Policy Center at The Ohio State University in the form of our "Drugs on the Docket" podcast. 

As noted in prior posts when the podcast was first released a few months ago, a set of six episodes  comprises the first season, with each episode running under an hour.  The whole original season is fully available on Apple Podcasts, Google Podcasts and YouTube.  And, excitingly, the "Drugs on the Docket" team (of which I am a member) has been spending recent few weeks recording some updated content through shorter recordings (under 20 minutes) covering new legal and policy developments related to issue each of the full episodes of Season 1.  Some of these have already been released an a few more are forthcoming.

I have noted before my (admittedly biased) view that the curated discussions in this "Drugs on the Docket" podcast are all interesting and informative.  Because I am eager to see this podcast grow its audience (and also because my colleagues at DEPC have worked remarkably hard to put this content together), I will keep using this space to encourage everyone to check out all the episodes (and I will keep welcoming substantive suggestions as we work on topics for Season 2).   

Once again, here is how the podcast subject matter is generally described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Especially since I will likely have less content in this blog space over the next 10 days, I hope many folks will take a few moments to check out the "Drugs on the Docket" podcast.

Last Prisoner Project releases big new report on "The State of Cannabis Justice"

The Last Prisoner Project, a marijuana reform group, has today releases a set of state report cards as part of a big new report titled "The State of Cannabis Justice." This LPP website shows the state-by-state grades that are explained more fully in this 70-page report. Here is the report's executive summary:

A deeper look into the status of cannabis justice policy throughout the nation reveals that cannabis justice policy is rapidly progressing and has situated itself at the center of policy priorities.

As of 2023, 23 states have enacted adult-use cannabis legalization, 24 states have enacted cannabis-specific record clearance laws, and 10 states have enacted cannabis-specific resentencing laws.  Importantly, these criminal justice policies have become commonplace in recent legislation.  In fact, since 2018, 100% of the 13 states that have legalized cannabis have included record clearance policies and since 2021, they have all been state-initiated.  While resentencing policies have been slower to take hold, they are also growing in importance and have been included in more than half of the legalization bills since 2020.  The increasing inclusion of these policies speaks to the importance of providing relief for individuals harmed by the historically unjust War on Drugs.

Unfortunately, the report also shows that, despite the country’s progress in the breadth and depth of cannabis justice policy, we are still far behind.  While more and more states are working to include retroactive relief for cannabis related offenses, the policy lags behind in every single state.

While states such as California, Minnesota, Maryland, and New Mexico have strong statutory language, they have all fallen behind in actually offering relief to impacted individuals. In California, the deadline to effectuate record clearance has passed, yet, over 20,000 individuals are still without relief.  In Minnesota, the structure of a separate review board has caused significant delays, leaving the state yet to appoint the board despite the instructed start date already passing.  In Maryland, it is unknown if the state has begun to enact the criminal justice provisions. In New Mexico, the state has faced rollback efforts to limit the impact of retroactive provisions throughout the past two years.

These implementation struggles make it clear that statutory language is only a start to effective change, and this report only touches the surface in evaluating the accessibility of relief.  The progress of cannabis justice policy is promising, but an evaluation of their status shows that there is still much to be done.

US Sentencing Commission releases FY 2023 third quarter sentencing data (and the stories of crack sentencing continues to evolve)

Earlier this week, the US Sentencing Commission released on its website its latest quarterly data report which is labelled "3rd Quarter Release, Preliminary Fiscal Year 2023 Data Through June 30, 2023."  These new data provide the latest accounting of how federal sentencing is working toward a new normal in the wake of a COVID pandemic and related evolutions in the federal criminal justice system.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be between 15,000 and 17,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 12 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is mostly a facet of the different caseload and case mixes.  In the most recent quarters, the official data show that only around 42.5% of all federal sentences are imposed "Within Guideline Range."  This number continues the modern reality that, since the pandemic hit, significantly more federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 should be especially striking.  These figures show, for the last three quarters, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencing caseload than powder and crack cocaine, heroin and fentanyl combined.  Moreover, the average sentence for all those meth cases is well over eight years in prison (and has been rising in recent quarters), whereas the average for all the other drug cases is around six years or lower.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentences upon, the meth defendants than anyone else. 

Especially notable is how few crack cases are being sentenced and how relatively low average crack sentences now are.  Back in FY 2008 (a little before the sentencing reforms of the Fair Sentencing Act), the USSC data showed that over 6000 crack defendants were been federally sentenced that year with an average sentence approaching 10 years in prison.  But now, with only 4.6% of the federal drug sentencing caseload involving crack cases, it seems likely that fewer than 1000 crack defendants will be sentenced in federal court in FY 2023 and in the latest quarter the average crack sentence was well under 5 years.  In other words, the crack caseload has gone down by more than 80% and the average sentence has gone done by more than 50%.  Remarkable.

"Examining Underlying Reasons for Continued Public Support for Punitive Sentencing for Drug Offenses in the U.S.: Preliminary Results from Three National Experiments"

The title of this post is the title of this new paper authored by Colleen Berryessa now available via SSRN. Here is its abstract:

This grant report reports preliminary results for three experimental studies with national samples of the U.S. public that examine why many members of the public continue to support punitive approaches to the sentencing of different drug offenses.  The findings have implications for understanding and influencing U.S. public support for sentencing approaches for drug offenses, including data to suggest that many members of the public back laws and approaches that align with or may be affected by their “internal feelings,” even if such approaches may not be evidence-based.  These data can also inform the work of advocates and policymakers on how to get members of the public to “buy in” to drug sentencing reform and how to best promote public support for evidence-based sentencing laws in emerging reform efforts.

Intriguing Third Circuit panel ruling rejects drug quantity finding based on extrapolation

I have long been troubled by how much weight the US Sentencing Guidelines give to drug quantities in guideline calculations, in part because of how those quantities are sometimes calculated.  A recent Third Circuit panel decision provide a small window into these stories in the course of finding insufficient how federal prosecutors sought to prove up drug quantities in the sentencing of a hinky doctor.  Here is how the opinion in US v. Titus, No. 22-1516 (3d Cir. Aug 22, 2023) (available here):

Though the prosecution bears a heavy burden of proof, we will not let it cut corners.  Dr. Patrick Titus wrote thousands of prescriptions for controlled substances.  The government properly proved that many of these prescriptions were unlawful, so we will affirm Titus’s conviction.  But many other prescriptions were lawful.  And the severity of Titus’s sentence depended on how many were not.  Rather than review every patient’s file, the government urged the court to extrapolate from a small sample.  Yet the government failed to show that doing so would satisfy its burden to prove the drug quantity by a preponderance of the evidence.  Because the court sentenced Titus without enough proof, we will vacate his sentence and remand for resentencing.