Sunday, June 02, 2019

New Illinois marijuana legalization legislation gives particular attention to criminal justice concerns

As some readers know from my repeated mention of my article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I am especially interested in how marijuana reform can and should intersect with criminal justice concerns and should advance criminal justice reform efforts.  Consequently, I am especially pleased and intrigued that the new (soon to be official) Illinois marijuana legalization legislation gives particular attention to criminal justice matters.  This USA Today article, headlined "Illinois posed to legalize marijuana sales, expunge criminal records for pot crimes," provides some of the particulars:

Illinois is poised to legalize marijuana sales with sweeping legislation that would also automatically expunge the criminal records of people convicted of minor pot possession.

State lawmakers gave final approval to the bill Friday and Gov. JB Pritzker said he will sign the measure, which make Illinois the first state to legalize marijuana sales via its legislature.  Most other states that have legalized cannabis did so via a ballot initiative process.  Vermont's legislature legalized cannabis but prohibited commercial sales.

"This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance," Pritzker said in a statement. "In the interest of equity and criminal justice reform, I look forward to signing this monumental legislation."...

Prizker's office didn't give a timeframe for when he might sign the law, which would go into effect Jan. 1, 2020.  Under the system, adults could buy and possess up to 30 grams of cannabis "flower," along with marijuana-infused foods known as edibles, and small amounts of highly concentrated extracts. Non-residents could buy half the amount.

The law also establishes a system for taxing and regulating marijuana, and consumers would pay up to 34.75% tax on their purchases, depending on potency.  Regulators would give preference points to members of minority groups seeking to get business licenses, and state-certified labs would test products for potency and contaminants, a growing concern among users.  Backers say the measure will create jobs in communities around the state, an argument made by Canadian officials when they legalized marijuana nationally last year.

Money raised by the new taxes would first be dedicated to expunging an estimated 770,000 minor cannabis-related cases, according to the bill's language.  Expungement has long been a goal of marijuana-legalization advocates, who argued the federal government's so-called War on Drugs disproportionately targeted minorities.  Other states have similar provisions, usually added after the fact, but Illinois' law is the first to contain such a sweeping expungement provision from the start.

Any tax money left over after would be used to support drug-treatment and enforcement programs, improve mental health counseling access, and bolster the state's general fund.

"Cannabis was at the heart of our nation's disastrous War on Drugs.  This is a measure that will improve people's lives on a level commensurate with the devastation wrought by prohibition," said Steve Hawkins, executive director for the pro-legalization Marijuana Policy Project, which worked with lawmakers and Pritzker to write the law.  "Illinois is on the brink of replacing a shameful, destructive policy with the most far-reaching cannabis law ever enacted."

In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I urged states to utilize tax revenues gained from marijuana legalization to advance expungement efforts, and am so pleased to see Illinois make expungment efforts its very first funding priority.  In my article, I also urged the creation of administrative infrastructure to support this work in the form of what I call a "Commission on Justice Restoration."  I do not believe the Illinois legislation goes this far, but maybe future reforms in that state or elsewhere will. 

In the meantime, I realize I am way behind in providing here a round up of some posts from my blogging at Marijuana Law, Policy and Reform that highlight the intersections of marijuana reform and criminal justice issues.  So:

June 2, 2019 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 18, 2019

Some effective criminal justice coverage amid Reason's "Weed Week"

In this new post over at Marijuana Law, Policy & Reform, I have flagged the array of new pieces at Reason in a "Weed Week" series.  Though I recommend many of the ten pieces in the series, two in particular should be of particular interest for sentencing fans.  Here are full headlines, links and short excerpts (with links from the original):

"How Even Legal Marijuana Use Can Land You in Jail: Failed drug tests can send people on probation or parole back into prison cells" by Scott Shackford

There are more than 4.5 million people on probation or parole in the U.S., nearly twice the number of people behind bars at any given time.  All of these folks are subject to incarceration if they violate the terms of their supervised release, and in most places, a prohibition on using cannabis products may be one of those terms.

"Marijuana is a big issue when it comes to parole, but it's just the tip of the iceberg" explains Tyler Nims, the executive director of the Independent Commission on New York City Criminal Justice and Incarceration Reform.  "Parole is a huge issue in criminal justice reform and in particular in New York. But it's unseen and unknown."

According to analysis of probation and parole figures put together by the Pew Charitable Trusts, a little more than half of probation and parole stints end without incident.  But nearly 350,000 people get new jail terms annually because they've failed to complete probation or parole with a spotless record.  In some states, revocation of supervised release is the main driver of incarceration.  In Georgia, for example, 67 percent of new prison admissions in 2015 were due to revoked probation or parole.  The same was true in Rhode Island, where 64 percent of new prison admissions in 2016 were due to supervised release revocations.

Judges have wide discretion to set the terms for release.  That often includes prohibiting behavior that is otherwise perfectly legal. Probation and parole guidelines can limit where people go, who they can consort with, and what they may or may not consume.  Earlier this year, a judge in Hawaii told a man arrested for stealing car that he could not consume Pepsi while on probation — and put him under supervised release for four years.  While incidents like that one are relatively rare, prohibiting the use of marijuana while on supervised release is standard.

Whether marijuana use will continue to be deemed a violation is something to watch and weigh in on as state-level legalization continues.

 

"Pot Can Earn You Profits or a Prison Sentence: It all depends on where you happen to be" by Jacob Sullum

An estimated 40,000 marijuana offenders are serving time in state or federal prisons for agricultural or commercial activities that are now legal in nine states, earning entrepreneurs profits instead of prison sentences.  According to the website lifeforpot.com, more than two dozen marijuana offenders are serving life sentences or prison terms that amount to the same thing.

Life sentences for cannabis are rare, and the vast majority of people arrested on marijuana charges — about 660,000 in 2017, nine out of 10 for simple possession — serve little or no time behind bars (although they may suffer long-lasting ancillary penalties).  But some states still come down hard even on minor pot offenses.

In ... Georgia, possessing one ounce or less of marijuana is a misdemeanor punishable by up to a year in jail and a $1,000 fine.  Any more than that is a felony, triggering a one-year mandatory minimum and a maximum of 10 years for amounts up to 10 pounds.  Pot penalties are similarly harsh in ArkansasFloridaIdahoOklahomaSouth DakotaTennessee, and Wyoming, where the lowest-level marijuana offense can be punished by up to a year behind bars.

Even states that are not quite so punitive can have nasty surprises in store for cannabis consumers.  In Texas, possessing two ounces or less of marijuana is a misdemeanor punishable by up to six months in jail.  But possessing any amount of cannabis concentrate is a felony, and the maximum penalties apply to weights above 400 grams.  The entire weight of food or beverages spiked with concentrate counts toward that threshold, which is why a teenager caught with 1.4 pounds of pot cookies and brownies in 2014 initially faced a sentence of 10 years to life.

April 18, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Monday, April 15, 2019

Fascinating map and data highlighting prevalence and intensity of marijuana's criminal enforcement footprint

MIUJRLKJWJFCFOZTWYLD2U6JUI.pngOver at the Washington Post, Christopher Ingraham has this great new piece fully titled "Where the war on weed still rages: In some U.S. counties, more than 40 percent of all arrests are for marijuana possession." The title highlights the piece's themes, but the text and a map therein reinforce the point in various ways:

Marijuana possession led to nearly 6 percent of all arrests in the United States in 2017, FBI data shows, underscoring the level of policing dedicated to containing behavior that’s legal in 10 states and the nation’s capital.

But the figure obscures the considerable variations in enforcement practices at the state and local levels.  In many areas of the country in 2016, more than 20 percent of all arrests stemmed from pot possession, according to newly released county-level arrest figures from the National Archive of Criminal Justice Data.  The figure exceeds 40 percent in a handful of counties, topping out at nearly 55 percent in one Georgia county.

The data tracks arrests, not individuals, so there’s no mechanism for winnowing out repeat offenders.  Nor does it include arrests for the sale or production of marijuana. But the numbers still illustrate how marijuana enforcement continues to make up a big part of many police agencies’ caseloads.

The findings reflect, in part, a few simple realities: The federal government incentivizes aggressive drug enforcement via funding for drug task forces and generous forfeiture rules that allow agencies to keep cash and other valuables they find in the course of a drug bust.  And because marijuana is bulky and pungent relative to other drugs, it’s often easy for police to root out.

But given that recreational marijuana is legal throughout the West, and that two-thirds of the public supports legalization, critics view such aggressive enforcement tactics as wasteful, ineffective and even racially biased....

Nationwide, a few clear patterns emerge in the county-level arrest statistics from 2016, the latest year for which data is available.  A swath of mostly conservative states, running from North Dakota through Texas, is home to many counties where marijuana enforcement accounts for 10 percent or more of all arrests — well above the national average.

But those conservative states are by no means alone.  On the East Coast, New York and New Jersey stand out for relatively high arrest rates for marijuana possession. In New England, New Hampshire — the “Live free or die” state — also shows a high number of arrests relative to its neighbors.

States that have legalized marijuana, on the other hand, tend to have lower arrest rates. Colorado and Washington, where recreational use had been legal for two years at the time the data was taken, few counties attributed more than 2.5 percent of their arrests to marijuana enforcement.  Not a single county in California, which legalized the drug in 2016, met that threshold. Alabama and Kentucky — which are not known for liberal marijuana policies — also appeared to place a low priority on marijuana possession enforcement.

The data shows that Dooley County, Ga., has the highest rate of marijuana arrests in the nation. Out of 422 total arrests in 2016, 230, or 54.5 percent, were for marijuana possession.  The next highest was Hamilton County in New York’s Adirondack Mountains, where 43.5 percent of the 130 arrests logged in 2016 targeted marijuana offenders. That’s followed by Sterling (42.1) and Hartley (42.0) counties in Texas, with South Dakota’s Edmunds County (33.3 percent) rounding out the top five.

While these counties are all small and rural, some larger counties in and around big cities also reported unusually high arrest rates. In Chesapeake, Va., (population 233,000), for instance, 23 percent of its nearly 3,600 arrests were for marijuana possession. In Maryland’s Montgomery County (population 1 million), just outside of Washington, D.C., about 20 percent of its 24,000 arrests were for pot....

Another notable component of the study is what’s missing. Individual police agencies share arrest statistics with the FBI as part of its Uniform Crime Reporting Program.  But participation is voluntary, and different states use different systems to report crime and arrest data, which means that some jurisdictions have more complete coverage than others.  The map above omits all jurisdictions where the reporting rate is less than 90 percent, which eliminates large parts of some states and removes others, like Illinois and Florida, completely.

Not all marijuana arrests lead to convictions or prison time. But an arrest can be highly disruptive in and of itself: Legal fees, bail and bond costs, time lost from work and the potential for pretrial detention can take a heavy toll on arrested individuals.  In a number of cases, suspects have been inadvertently or deliberately killed while in police custody for possessing small quantities of pot.  In one recent high-profile case, a Pennsylvania man was crushed by a bulldozer as he fled from police attempting to apprehend him over 10 marijuana plants — a quantity that is legal in other parts of the country.

Cross-posted at Marijuana Law, Policy and Reform.

April 15, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (0)

Friday, March 01, 2019

"The Lingering Stench of Marijuana Prohibition: People with pot records continue to suffer, even in places where their crimes are no longer crimes."

The title of this post is the title of this great new article by Jacob Sullum at Reason. I recommend the article in full, as it goes through the expungement law of each state which has now fully legalized marijuana for adult use and tells stories of individuals still stuggling with the lingering impact of marijuana prohibition. Here is part of the start of the piece:

Franklin Roosevelt, who took office in the final year of Prohibition, issued some 1,300 pardons for alcohol-related offenses during his first three terms. As a 1939 report from the Justice Department explained, "pardon may be proper" in light of "changed public opinion after a period of severe penalties against certain conduct which is later looked upon as much less criminal, or as no crime at all." The report cited Prohibition as "a recent example."

That logic made sense to governors as well. When Indiana repealed its alcohol prohibition law in 1933, Gov. Paul McNutt (D) issued pardons or commutations to about 400 people who had been convicted of violating it. "If these men were kept in prison after the liquor law is repealed," he said, "they would be political prisoners."

Alcohol prohibition lasted 14 years. Marijuana prohibition has been with us almost six times as long. Police have arrested people for violating it about 20 million times in the last three decades alone. Many of those people were ultimately convicted of felonies that sent them to prison, although the vast majority were charged with simple possession and spent little or no time behind bars. Either way, marijuana offenders have had to contend with the lingering effects of a criminal record, which can shape people's lives long after they complete their sentences.

Depending on the jurisdiction and the classification of the offense, people who were caught violating marijuana laws may lose the right to vote, the right to own a gun, the right to drive a car (for up to a year), the right to live in the United States (for noncitizens), and the right to participate in a wide variety of professions that require state licenses. They may find it difficult to get a job, rent an apartment, obtain student loans, or travel to other countries. They may even be barred from coaching kids' sports teams or volunteering in public schools.

The employment consequences can be explicit, as with state laws that exclude people convicted of felonies from certain lines of work, or subtle, as with private businesses that avoid hiring people who have criminal records, possibly including arrests as well as convictions, because of liability concerns....

Such ancillary penalties seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use. In those places (which so far include 10 states, the District of Columbia, and the Northern Mariana Islands), people convicted under the old regime continue to suffer for actions that are no longer crimes.

California has gone furthest to address that problem. The state's 2016 legalization initiative authorized expungement of marijuana records, and a 2018 law will make that process easier. Demanding expungement as a remedy for injustice, activists in California emphasized the racially disproportionate impact of the war on weed: Black people are much more likely to have pot records than white people, even though they are only slightly more likely to be cannabis consumers.

Other states offer various forms of relief, ranging from generous to nearly nonexistent. All of them put the onus on prohibition's victims to seek the sealing or expungement of their criminal records, a process that can be complicated, expensive, and time-consuming....

People with marijuana records are looking for a way out in every state that has legalized recreational use, as the stories below show.

As some readers may recall, I wrote a paper last year on this topic under the title "Leveraging Marijuana Reform to Enhance Expungement Practices".  I have also covered these issues a whole lot over at Marijuana Law, Policy & Reform, and here is just a small part of that coverage:

March 1, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, February 17, 2019

Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?

The question in the title of this post is prompted by an interesting on-going story out of Norfolk, Virginia which I have blogged about over here at my marijuana blog.  This recent local article reports on these particulars:

The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.

On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.

For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.

The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....

Underwood’s change on marijuana possession is part of his larger effort to bring what he calls criminal justice reform to Norfolk. In a Jan. 3 letter to judges, the police chief and other public safety officials, he announced he would support ending cash bail in many cases and seeking more equal sentences between prostitutes and their clients.

In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black. This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.

Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.

Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.

Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.

It seems like an indisputable given that a judge cannot legally make a prosecutor bring a charge.  But once a charge has been brought, and perhaps especially once a conviction has been obtained, I can envision plausible bases for wanting to preserve some formal judicial authority to refuse to allow charges to be dropped or dismissed in some extreme circumstance.  For example, refusing dismissal could seem justified if a judge had a reasonable basis to believe that the prosecutor had been bribed to dismiss certain charges or if a judge concluded that dismissals were driven by some kind of unconstitutional motive.  The judges here are arguably asserting that these dismissals are constitutionally suspect, but that seems like a stretch on these facts. (Indeed, I wonder if Commonwealth’s Attorney Underwood might try to defend his dismissals by saying he is worried about constitutional infirmities concerning who gets arrested and charged by police for marijuana offenses.  Surely a prosecutor must have broad authority to seek dismissal of charges that he believes may be infected with constitutional problems.)

Whatever one thinks of the legal basis for judges refusing dismissals here, I also wonder how this will continue to play out practically.  Will judges in this jurisdiction seek to appoint another prosecutor to pursue charges that the local prosecutor seeks dismissed?  Do they have authority to do so and is there any other way for these cases to proceed absent such an appointment? If and when these cases are on appeal, might the defendants seek amicus support from Commonwealth’s Attorney Greg Underwood or at least a formal statement from him saying he believes the cases should no longer proceed?

February 17, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, February 10, 2019

Some recent highlights from Marijuana Law, Policy & Reform

Though it has only been a few weeks since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, interesting recent developments and some timely research prompts me to highlight some of the MLP&R action.  So, with criminal-justice-related stories at the top:

February 10, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Tuesday, January 29, 2019

Discussing "Cannabis Reform as Criminal Justice Reform" at North American Cannabis Summit

Download (4)I have had the great fortune of escaping some of the deep chill now hitting the midwest because I am in California participating in this great event, the 2019 North American Cannabis Summit.  This webpage provides links to all the awesome programming over three days at this summit, which "is organized by the overarching themes of public health, health disparities, and health equity in policy and practice and [addresses] legislative, medical, science, and policy implications for the legislation of marijuana in jurisdictions across the continent."

This afternoon I am speaking on the topic of "Cannabis Reform as Criminal Justice Reform," expanding in various ways on some of the coverage of my article titled "Leveraging Marijuana Reform to Enhance Expungement Practices."  Because I already know what I am going to say, I am most looking forward to my panel to hear comments from the other participants, Shaleen Title, Commissioner of the Massachusetts Cannabis Control Commission, Amol Sinha, Executive Director, ACLU-New Jersey, and Johnathon Card, Legal Policy Intern, Health in Justice Action Lab.  Folks can find on this webpage links to the presentation slides for the event.

In addition to praising the organization and presentations involved in this North American Cannabis Summit, I figured I could also use this post as an excuse to spotlight some of the criminal-justice-relevant blogging from over at Marijuana Law, Policy & Reform.  So:

January 29, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Tuesday, January 15, 2019

Spotlighting continuing important debates over marijuana, mental illness and violence

Regular readers know I am quite interested in the intersection of marijuana reform and broader criminal justice issues (which partially accounts for why I have this other blog and this academic center).  So, it should come as no surprise that I have been following with interest the discussions and debates being stirred up by Alex Berenson's new book, "Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence."  The publisher's page about the this book highlights reasons why it is getting a lot of attention and a lot of push back:

An eye-opening report from an award-winning author and former New York Times reporter reveals the link between teenage marijuana use and mental illness, and a hidden epidemic of violence caused by the drug—facts the media have ignored as the United States rushes to legalize cannabis....

THC — the chemical in marijuana responsible for the drug’s high — can cause psychotic episodes. After decades of studies, scientists no longer seriously debate if marijuana causes psychosis.

Psychosis brings violence, and cannabis-linked violence is spreading. In the four states that first legalized, murders have risen 25 percent since legalization, even more than the recent national increase. In Uruguay, which allowed retail sales in July 2017, murders have soared this year.

I have not yet had a chance to read Berenson's book, but I have had a chance to cover some of his commentaries and now others' commentaries taking issue with many of his claims over at  over at Marijuana Law, Policy & Reform.  I thought it worthwhile to flag that coverage now over here, in part because I would not be surprised to see this important debate mentioned at some point during the confirmation hearing for AG nominee William Barr if he gets asked about federal marijuana laws and policies:

An especially helpfully addition to this discussion this morning comes from The Marshall Project, which has this great new piece with great contributors under the headline "How Dangerous is Marijuana, Really? A Marshall Project virtual roundtable."

January 15, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Sunday, January 06, 2019

Some New Year highlights from Marijuana Law, Policy & Reform

It has only been a few weeks since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, but a recent post round-up is timely given the interesting discussions that the end if 2018 and start of 2019 have engendered. So:

January 6, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Thursday, December 27, 2018

"Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform"

The title of this post is the headline of this new extended Reason piece authored by Scott Shackford. I recommend the piece in full, and here is how it gets started and its headings:

With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.

But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking.  And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.

Here are some highlights (and lowlights) of American criminal justice in 2018:

The FIRST STEP Act passed (finally)....

Marijuana legalization continued apace....

Civil Asset Forfeiture under the microscope....

Attorney General Jeff Sessions shown the door....

The war on sex trafficking leads to online censorship, not safety....

Treating opioid overdose deaths as murders....

Reducing dependence on cash bail....

This strikes me as a pretty good list, though it leaves out some notable state-level developments such as Florida's vote to retrench its expansive approach to felon disenfranchisement and lots of state-level work on reducing collateral consequences.

I welcome reader input on other criminal justice reforms (or just events) from 2018 that they think worth remembering.

December 27, 2018 in Collateral consequences, FIRST STEP Act and its implementation, Marijuana Legalization in the States, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Friday, December 21, 2018

Some holiday season highlights from Marijuana Law, Policy & Reform

Though it has been well over a month since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, but this is not because there have not been lots of noteworthy marijuana reform developments.  Rather, so much is going on in this space, I cannot come close to keeping up.  Still, here are just some of my recent posts from MLP&R that may be of particular broader criminal justice interest:

December 21, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Wednesday, November 28, 2018

Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50"

Politico has this lengthy report, headlined "White House makes last-ditch push on criminal justice reform bill," on the state of debate among Senate Republicans concerning the FIRST STEP Act.  Here are details:

The Trump administration and a bloc of Republican senators are making a last-ditch attempt to pass a criminal justice reform bill in the lame duck session.

In a closed-door party lunch on Tuesday, Vice President Mike Pence made a strong endorsement of the bill to Senate Republicans, senators said, emphasizing that the GOP could take a clear win in the lame duck with passage.  And supporters said they picked up votes during the discussion; one supportive GOP senator said they’ve accrued more than 20 hard “yes” votes and that another dozen or so GOP senators are gettable, which would likely be enough to easily pass the bill — if leadership will bring it up.

Senate Majority Leader Mitch McConnell (R-Ky.) maintained his poker face at the meeting, other than to reiterate the Senate’s short calendar.  Asked to assess the prospect that McConnell will put the sentencing and prison reform bill on the floor, one attendee said: “Less than 50/50.”...

“A lot of people like me are still trying to understand what it does,” said Sen. Bob Corker (R-Tenn.), who characterized Tuesday’s critical meeting as a “higher level discussion of whether we should attempt to do it.”

As they assess the bill‘s prospects, GOP leaders are also asking senators whether they'd prefer to deal with the bill next year after Democrats take over the House, according to two sources familiar with the matter.  That would dismantle a fragile bipartisan agreement and require Republicans and Democrats alike to essentially start over.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) is still trying to garner more support for the bill, which would lower mandatory minimum sentences for some drug-related felonies, expand a program for early release, promote training programs in prison and require inmates be placed in prisons closer to their homes. He and other advocates say they are open to changing the bill’s treatment of some criminals in order to win new supporters.

“We’re still working on getting additional yeses or additional cosponsors,” Grassley said, noting that the only way to overcome opposition from Sen. Tom Cotton (R-Ark.) and others was to increase co-sponsorship. He added that “we’re talking about no announcement before a couple days.”

McConnell is loath to take up the bill on the floor to prevent a circular firing squad among Republicans. But that’s already happening both in public and private: After trading blows on Twitter in recent days, Sen. Mike Lee (R-Utah) and Cotton each gave opposing speeches about the bill in the lunch.

But supporters said they have the momentum and estimated only a half-dozen Republicans will be difficult to convince: Cotton, Sen. John Kennedy (R-La.), Ben Sasse (R-Neb.), Jim Risch (R-Idaho) and Deb Fischer (R-Neb.).  “Over half of the Republicans are for it, and maybe 80 percent, 90 percent, maybe all of the Democrats support it,” Sen. Rand Paul (R-Ky) said. “Things are all moving in the right direction.”

Still, Sen. Marco Rubio said that he is skeptical of the bill, particularly when it comes to classification of crimes and said he is “not sure there is anything” that could win him over. And a small bloc of Republicans, led by Cotton and Kennedy, are vocally going after the bill.  Kennedy called it “ass backwards” in an interview and said he had “serious philosophical problems with the criminal justice bill.” It “takes all our authority and gives it to a bunch of bureaucrats,” he said.

The Senate also needs to pass a spending bill by Dec. 7 to avoid a partial government shutdown, and lawmakers are trying to wrap up negotiations around the Farm Bill. The criminal justice bill is regarded as a “maybe” that could potentially wait until next year. A version of the bill has already passed the House.

Senate Majority Whip John Cornyn (R-Texas) said that the bill “is still being evaluated and people are still trying to figure out where they stand.” He said McConnell has made no final decision....

But no matter what, there will be detractors.  Cotton told reporters Tuesday that while the House’s version of the bill was “fixable,” the Senate’s draft of the legislation has “gone consistently to the left.” 

If only a handful of Republicans supported this bill, I could understand why (but would still be frustrated) the Senate Majority Leader would not want to bring forward a bill favored more by his opposing party than by his own party.  But this Politico report reinforces my sense that a majority of GOP Senators would vote for the FIRST STEP Act and that a super-majority of all Senators (representing a super-super majority of the nation's population) want this legislation enacted.  That a few Senators from a few states can, in essence, exercise a heckler's veto highlights why thoughtful federal criminal justice reform has been so very hard.  Sigh.

Some of many prior related posts:

November 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Prisons and prisoners, Who Sentences | Permalink | Comments (6)

Sunday, November 18, 2018

Spotlighting the still-challenging politics that surround the intersection of marijuana reform, criminal justice reform and racial inequities

Today's must-read for both marijuana reform and criminal justice reform fans is this lengthy new Politico article fully headlined "Racial Justice and Legal Pot Are Colliding in Congress: The latest fight over criminal justice reform is over allowing felons access to newly legal aspects of the cannabis industry. Lawmakers are getting woke — slowly." I recommend this piece is full, and here are some extended excerpts:

Thanks to Senate Majority Leader Mitch McConnell, the [Farm] bill includes an amendment that would permanently remove hemp from the list of federally banned drugs like heroin and cocaine, freeing hemp from the crippling legal stigma that has made it economically unviable for the past four decades.  But that amendment also includes a little-noticed ban on people convicted of drug felonies from participating in the soon-to-be-federally-legal hemp industry.

Added late in the process, apparently to placate a stakeholder close to McConnell, the exception has angered a broad and bipartisan coalition of lawmakers, hemp industry insiders and religious groups who see it as a continuing punishment of minorities who were targeted disproportionately during the War on Drugs and now are being denied the chance to profit economically from a product that promises to make millions of dollars for mostly white investors on Wall Street....

[L]awmakers like McConnell, who have discovered the economic benefits of relaxing prohibitions on products such as hemp, have nevertheless quietly found ways, like the Farm Bill felon ban, to satisfy the demands of their anti-legalization constituents, to the chagrin of pro-cannabis lawmakers and activists. After POLITICO Magazine reported on the drug-crime felon ban in August, three senators — Cory Booker (D-New Jersey), Rand Paul (R-Kentucky), and Jeff Merkley (D-Oregon) — wrote to Senate leadership demanding the removal of the ban, citing its “disparate impact on minorities,” among other concerns.

“I think there’s a growing recognition of the hypocrisy and unfairness of our nation’s drug laws, when hundreds of thousands of Americans are behind bars for something that is now legal in nine states and something that two of the last three Presidents have admitted to doing,” Booker told POLITICO Magazine. “If we truly want to be a just and fair nation, marijuana legalization must be accompanied by record expungement and a focus on restorative justice.”...

[The] once-radical notion that felons ought to gain priority for entry into a newly legal industry — instead of being shut out — has quietly gained bipartisan support on Capitol Hill, albeit not among Republican leadership.  In the House, this mounting opposition to the continuing punishment of felons first cropped up in September when the Judiciary Committee passed its first pro-marijuana bill.  It would expand access to scientific study of the cannabis plant, a notion agreed-upon by marijuana’s supporters and detractors alike.  However, Democrats almost killed the bill because it included language that barred felons (and even people convicted of misdemeanors) from receiving licenses to produce the marijuana.

Felon bans are commonplace in legal marijuana programs.  Every state has some version of it, but most of them have a five- or 10-year limit.  But the felon bans in both the Senate’s Farm Bill and the House’s marijuana research bill are lifetime bans, and the House bill includes misdemeanors, too. “Any restriction on misdemeanors goes in the exact contrary direction of the Second Chance Act,” said Rep. Jerry Nadler (D-New York), who will become chairman of the Judiciary Committee in January.  His criticism was echoed by Steve Cohen (D-Tennessee), who sought to have the misdemeanor language struck from the bill until its sponsor, Matt Gaetz (R-Florida), promised to address that language when it comes to the House floor.

In the Senate, the movement to protect the legal marijuana trade has taken the form of the proposed bipartisan Gardner-Warren STATES Act, which would maintain the status quo of federal non-interference of state-legal programs that was upended when then-Attorney General Jeff Sessions repealed the Cole Memo, an Obama-era document that outlined a hands-off approach to state-legal programs.  Booker’s Marijuana Justice Act would adopt California-style principles and apply them federally, going far beyond the STATES Act, removing marijuana from Schedule I (defined as having no medical value and a high risk of abuse) and eliminating criminal penalties for marijuana.  But unlike other pro-marijuana bills, it would also deny federal law-enforcement grants to states that don’t legalize marijuana; direct federal courts to expunge marijuana convictions; and establish a grant-making fund through the Department of Housing and Urban Development for communities most affected by the War on Drugs.

Booker’s bill has become popular among Senate Democrats.  Ron Wyden, Kirsten Gillibrand, Bernie Sanders, Kamala Harris, Jeff Merkley and Elizabeth Warren have signed on as co-sponsors — a list that looks a lot like a lineup of presumed candidates for the 2020 Democratic presidential primary.  “For too long, the federal government has propped up failed and outdated drug policies that destroy lives,” Wyden told POLITICO Magazine.  “The War on Drugs is deeply rooted in racism.  We desperately need to not only correct course, but to also ensure equal justice for those who have been disproportionately impacted. People across America understand and want change. Now, Congress must act.”

Recent polling shows that Americans agree with Wyden — to a point.  There is a widespread acceptance of legalizing marijuana.  Gallup has been tracking this number since 1969, when only 12 percent of Americans believed in legalizing it; in October, Gallup put the number at 64 percent, the highest ever number recorded.  Pew says it is 62 percent, also its highest number ever. 

But there is far less acceptance of the idea that the War on Drugs has had an adverse impact on poorer, minority communities, or that there should be some form of compensation in terms of prioritized access to the new industry. A  poll conducted by Lake Research Partners, a progressive DC-based polling firm, earlier this year on the “Politics of Marijuana Legalization in 2018 Battleground Districts” found that 62 percent of the 800 likely voters surveyed agreed with the idea “we need legalization to repair the financial and moral damage of the failed War on Drugs.”  However, when the pollsters added a racial component to this message — whether the respondents felt that the marijuana prohibition “unfairly target[s] and destroy[s] minority communities” — only 40 percent found that message to be “very convincing.”...

[M]any members of the Congressional Black Caucus have been slow to support marijuana legalization. But the CBC finally made its position on this issue clear in June when its 48-member caucus voted in an “overwhelming majority” to support policies beyond mere decriminalization: “Some of the same folks who told African Americans ‘three strikes and you’re out’ when it came to marijuana use and distribution, are now in support of decriminalizing the drug and making a profit off of it,” CBC Chairman Cedric L. Richmond, Democrat from Louisiana said at the time. “The Congressional Black Caucus supports decriminalizing marijuana and investing in communities that were destroyed by the War on Drugs…” 

Arguments for legalizing marijuana haven’t been entirely persuasive to sway many in the conservative black community, but re-framing it in the context of civil rights has brought many around to this new way of thinking. “What is moving conservative black and brown folks is this idea that we’re on the horizon of marijuana legalization,” according to Queen Adesuyi of the Drug Policy Alliance. “So the idea is in order to do this in a way that is equitable and fair, you have to start on the front end of alleviating racially biased consequences of prohibition while we’re legalizing — and that means expungement, re-sentencing, community re-investment, and looking at where marijuana tax revenue can go, and getting rid of barriers to the industry.”

Now that Democrats have won control of the House, co-founder of the Cannabis Caucus, Rep. Earl Blumenauer (D-Oregon), is poised to implement his blueprint for how the House under Democratic leadership would legalize marijuana at the federal level.  Racial justice is front-and-center in that plan.  The memo he sent to Democratic leadership reads in part, “committees should start marking up bills in their jurisdiction that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws — before the end of the year. These policy issues… should include: Restorative justice measures that address the racial injustices that resulted from the unequal application of federal marijuana laws.”

Cross-posted at Marijuana Law, Policy and Reform.

November 18, 2018 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Sunday, November 04, 2018

Some recent posts of note from Marijuana Law, Policy & Reform just before another big election

Though it has been only a few weeks since I did a round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, the coming election leads me to think another review of some recent favorites may be in order.  So here goes:

November 4, 2018 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

Sunday, October 21, 2018

Some recent criminal justice highlights from Marijuana Law, Policy & Reform

It has been many months since I did a round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and there have been so many marijuana reform developments in those many months, so I cannot readily here round up all MLP&R highlights.  But I can cover some recent favorites from some recent posting that should be of particular interest to criminal justice fans, so here goes:

October 21, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Friday, September 14, 2018

"Laboratories of Democracy: Drug Policy In The United States"

The title of this post is the title of this exciting event taking place in Washington DC later this month that I have had the honor of helping to plan.  Here is the event's description:

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event (which will include a panel discussion on the opioid crisis and a panel discussion on marijuana reform) are available here and here.  

September 14, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Monday, July 23, 2018

"The Budgetary Effects of Ending Drug Prohibition"

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

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

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

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

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

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

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

Friday, July 13, 2018

Some midsummer highlights from Marijuana Law, Policy & Reform

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

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

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

Saturday, July 07, 2018

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

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

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

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

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

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

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

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

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

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

Friday, June 15, 2018

Some state highlights from Marijuana Law, Policy & Reform

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

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

Tuesday, June 12, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, June 10, 2018

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

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

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

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

Cross-posted at Marijuana Law, Policy & Reform.

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

Friday, April 20, 2018

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

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

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

Monday, April 16, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 13, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 11, 2018

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

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

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

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

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

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

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

Tuesday, February 13, 2018

Marti Gras highlights from Marijuana Law, Policy & Reform

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

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

Tuesday, January 23, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 04, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Related posts from here and MLP&R:

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

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

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

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

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

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

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

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

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

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

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

Related post from MLP&R:

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

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

Sunday, December 17, 2017

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

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

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

Sunday, December 03, 2017

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

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

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

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

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

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

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

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

Wednesday, November 01, 2017

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

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

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

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

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

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

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

Cross-posted at Marijuana Law, Policy and Reform

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

Sunday, October 29, 2017

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

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

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

Sunday, September 03, 2017

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

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

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

Sunday, August 20, 2017

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

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

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

Monday, August 14, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  Download Seeborg spending rider ruling

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

Tuesday, July 25, 2017

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

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

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

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

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

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

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

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

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

Sunday, July 16, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, June 04, 2017

Some recent highlights from Marijuana Law, Policy & Reform

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

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

Tuesday, May 23, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 18, 2017

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

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

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

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

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

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

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

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

Friday, April 21, 2017

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

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

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

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

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

Tuesday, February 07, 2017

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

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

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

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

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

Tuesday, January 24, 2017

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

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

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

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

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

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

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

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

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

Thursday, January 05, 2017

Marijuana reform and clemency conversations at the state and federal level

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

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

Sunday, January 01, 2017

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

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

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

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

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

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

Sunday, December 18, 2016

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

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

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

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

Sunday, December 11, 2016

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

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

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

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

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

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

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

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

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

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