Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

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

Some recent related posts:

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

Ever the criminal justice reform populist, former Prez Trump signals support for marijuana legalization in Florida and elsewhere

When he was president, Donald Trump played a critical role in advancing, and then signed into law, the most significant federal criminal justice reform in a generation, the First Step Act.  Trump has also often talked up expanding the federal death penalty and he presided over 13 federal executions during the last six months of his presidency.  Based on polling and other indicators, I view these aspects of Trump's criminal justice record as reflecting his populist inclinations.

In that spirit, I was not too surprise yesterday when Trump authored this Truth Social post to signal his support for Florida's Amendment 3, which would legalize adult use of marijuana in the Sunshine State.  National polls in recent years have generally shown about 2/3 of Americans support marijuana legalization, and various polls in Florida have shown nearly 60% of support for Amendment 3.  (Notably, ballot initiatives in Florida require 60% of the vote for an amendment's approval.)  Because marijuana legalization has lately proven quite popular with ordinary citizens, Trump's post and position seems to reflect his populist instinct.

In addition, in reviewing Trumo's post, I was struck by how certain language he used and points he made echo long-standing criminal justice reform advocacy.  Here are excerpts with some key terms emphasized:

We will take our streets back by being tough & smart on violent, & all other types, of Crime....

At the same time, someone should not be a criminal in Florida, when this is legal in so many other States.  We do not need to ruin lives & waste Taxpayer Dollars arresting adults with personal amounts of it on them, and no one should grieve a loved one because they died from fentanyl laced marijuana.

Notably, a wide array of criminal justice reformers and advocacy groups have long talked up the importance of being "smart" on crime.  The "Smart on Crime" label has often been embraced by coalitions of reform-minded groups at the state level, such as in Kentucky and Louisiana and Texas.  Even more notably, in 2013, then-US Attorney General Eric Holder launched a major reform effort labeled the "Smart on Crime" initiative.  And that "smart" branding may well have been drawn from the title of Kamala Harris's 2009 book "Smart on Crime: A Career Prosecutor's Plan to Make Us Safer."

Meanwhile, expressing concern about overcriminalization and also geographic unfairness in criminalization echoes justice reformers' oft-stated concerns (though racial inequities in criminalization are typically given more attention than geographic inequities).  And the suggestion that arrests of adults for mere marijuana possession can "ruin lives" has been a key theme in marijuana reform advocacy found in reports from the ACLU ("the price paid by those arrested and convicted of marijuana possession can be significant and linger for years, if not a lifetime") and editorials in the New York Times ("marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life").

Interesting times.

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

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

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

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

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

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

"Primary crime-related outcome indicators associated with recreational cannabis legalization: a comprehensive literature and data review"

The title of this post is the title of this new paper recently published in the journal Crime, Law and Social Change and authored by Benedikt Fischer, Tessa Robinson and Hans-Jörg Albrecht.  Here is its abstract:

Cannabis policies are increasingly being liberalized, including the implementation of formal legalization policies of non-medical use and supply in multiple jurisdictions (initially in the Americas) towards improved public health and safety objectives.  While focus on health indicators has shown mixed or adverse outcomes, less attention has been given to social-legal — and specifically crime-related — outcomes of legalization.  We conducted a comprehensive literature and data review of key crime-related outcomes associated with non-medical cannabis legalization in four main domains, based on targeted searches of recent academic (e.g., journal publication) and ‘grey’ English-language literature sources: 1) cannabis-related crimes and enforcement, and other crimes; 2) cannabis-impaired driving and related motor-vehicle-crashes; 3) cannabis sourcing by consumers; and 4) cannabis market evolution and dynamics. The data identified were extracted, organized and narratively summarized by topic.

The data reviewed suggest that cannabis-related crimes and enforcement have substantially decreased, yet arbitrary (e.g., racialized) enforcement patterns — involving both adults and youths — commonly persist in legalization settings; evidence for ecological effects on other (e.g., property, violent) crimes is mixed.  The prevalence of cannabis-impaired driving does appear to be steady or decreasing, while levels of cannabis involved in motor-vehicle-crashes, and overall motor-vehicle-crash fatality levels appear to have increased.  In North American legalization settings, the legal sourcing of cannabis has gradually increased to involve 50–70% or more of consumers alongside expanding legal retail market proliferation, while found to be influenced by multiple factors (e.g., product characteristics, price, use intensity).  Conversely, legal cannabis sourcing remains much more limited in Uruguay’s restrictive settings.  Data on the evolution of illegal cannabis markets is very limited, suggesting some evidence for reductions of illegal production but also shifts or displacement effects (e.g., towards production for or distribution in non-legalization settings), leaving open questions as to the impacts of legalization in these domains.  Overall, legalization appears to be meeting some of its socio-legal and specifically crime-reduction goals, yet while key data indicators are mixed or lacking. Focused and expanded research on crime-related outcomes of legalization policies is needed, also given limited benefits to date evidenced for health outcomes.

"Rescheduling Marijuana: Implications for Criminal and Collateral Consequences"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rounding up some new and older marijuana record relief scholarship for 4/20 reading

I tend to find extreme affinity for 420 as a kind of marijuana holiday to be a bit silly.  But I am not so much of a scrooge that I will eschew a marijuana-themed post on this day.  Inspired in part by a great new paper from researchers at the Drug Enforcement and Policy Center (the listed first below), I figured I woud round up an array of pieces from SSRN focused on the intersection of marijuana reform and record relief.  I have only collected pieces on was able to find quickly on SSRN, so what is linked here is surely just an abridged accounting of work in this space:  

"Automatic Record Relief in Ohio: Recommendations for Minimizing Implementation Challenges and Maximizing Impact"

"Marijuana Legalization and Record Clearing in 2022"

"Marijuana Legalization and Expungement in Early 2021"

"Erasing Evidence of Historic Injustice: The Cannabis Criminal Records Expungement Paradox"

"Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

"High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Marijuana Laws"

"Leveraging Marijuana Reform to Enhance Expungement Practices"

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

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

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

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

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

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

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

District judge bemoans federal marijuana developments that "do little to promote congruity in the law in this arena"

LawProf Jacob Schuman alerted me to the notable recent opinion by Chief Judge Mark Hornack in US v. Hannon, No. 2:17-cr-00180-7 (W.D. Pa. June 30, 2023) (available here).  The short opinion explains why the judge denies a motion by the defendant "seeking
relief from conditions of his supervision related to his requested use of marijuana to treat what he describes as a 'serious medical condition' and pursuant to a medical marijuana card issued by a licensed provider of such in the Commonwealth of Pennsylvania."  Along the way, the judge highlights "inconsistencies" in federal law and practice and makes these sorts of observations:

A rational observer could conclude that this state of affairs does not well serve the sound and fair administration of justice in the federal system.  It can be logically seen as unfair to the probation officers who are obligated to supervise those under their jurisdiction in the context of these conflicting expressions of federal policy.  Those same observers could also conclude that it is unreasonable for those in the shoes of the Defendant, who would just as logically be uncertain as to what conduct is for him lawful, under either state or federal law, in the face of what is stated to be a “serious medical condition”.  They might well also conclude that it is unfair to federal prosecutors, who are charged with advancing revocation proceedings for the use of “medical marijuana,” but run directly into the Congressional directive that no appropriated funds may be used to prosecute the possession or use of marijuana when such is lawful for medical purposes under state law.  And then, all of these participants in the legal process would also be observing the President declaring that no person should spend time in prison for simple possession of marijuana
and issuing blanket pardons to that same effect, when time in prison is statutorily mandated upon a revocation of federal supervised release, even if marijuana is “simply” possessed or personally used for medical uses as otherwise authorized by Pennsylvania law....

This situation could also be seen as undercutting the public’s understanding of the essential principle of respect for the law. When the highest levels of two of the three Branches of the federal government use their Constitutional appropriations and pardon powers to in essence speak at cross- purposes with the provisions of federal criminal statutes that remain on the books, it becomes more difficult to generate that respect for the law which is fundamental to our founding principles.

"Subtracting 420 from 922: Marijuana Legalization and the Gun Control Act After Bruen"

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

Numerous states have legalized marijuana for medical and recreational use.  Nonetheless, federal law prohibits users of marijuana, which remains illegal federally, from possessing firearms.  I interrogate this legal tension from two angles. First, this paper brings empirical evidence to this conversation: Does legalizing marijuana lead to more gun deaths?

It doesn’t.  This article analyzes the effect of recreational and medical marijuana legalization on gun homicides, suicides, and deaths as well as on gun prevalence, gun purchasing, and federal gun prosecutions.  I combine administrative data from the National Vital Statistics System, National Instant Criminal Background Check System, and United States Sentencing Commission for the period from 2010 through 2020.  To estimate a causal effect, I employ a difference-in-differences method with staggered treatment timing from Callaway and Sant’Anna (2021) to compare states that have legalized marijuana to those that have not yet legalized marijuana but will during the study period. There is no evidence of a statistically significant treatment effect of either recreational or medical marijuana legalization on firearms deaths, homicides, or suicides.  Additionally, there is no evidence that legalization causes greater firearms sales or prevalence, or that the federal gun prohibition for marijuana users deters gun killings post-legalization.

Secondly, this regulation has received new scrutiny after the Supreme Court’s recent ruling in NYSRPA v. Bruen, under which firearms regulations must be justified by consistency with “this Nation’s historical tradition of firearm regulation.”  Courts have come to conflicting answers on whether the prohibition on gun ownership by marijuana users accords with the Second Amendment under Bruen.  I therefore survey three potential legal paths for resolving the conflict between state legalization of marijuana and federal gun laws.  First, legislators might directly amend the Gun Control Act to allow for gun possession by some or all marijuana users.  Second, legislators might reform marijuana’s status within the Controlled Substances Act more broadly.  Finally, an uncertain future for the controlled-substance-user prohibition exists in the courts post-Bruen.  The Bruen decision’s unworkable tests do not clearly support either upholding or striking down this ban. If anything, the interpretation of the federal ban on gun possession by marijuana users under Bruen highlights the impracticability of its test.  Amongst these solutions, I argue that broader Controlled Substances Act reform is the likeliest to provide consistency while not harming public safety.

Marijuana legalization in Minnesota includes creation of expungement board to aid reforms and collect data

In a couple of articles (see here and here, also flagged below), I have advocated that modern marijuana reform efforts should include the creation of a new criminal justice institution, which I have called a "Commission on Justice Restoration."  As explained most succinctly in this commentary, I suggest this institution be funded by the taxes generated by marijuana reforms and be tasked not only with helping those previously convicted of marijuana offenses, but also with addressing the undue harms of a wide array of prior convictions.  In my vision, this Commission on Justice Restoration could assemble hard-to-collect data about convictions and collateral consequences, conduct and disseminate research on the fiscal and social costs of these collateral consequences, and advocate for legal and court reforms to advance sound record relief practices.

Sadly, no state has yet to embrace my vision for creating a Commission on Justice Restoration.  But, excitingly, the version of marijuana reform about to be signed into law in Minnesota (basics here) includes the creation of criminal justice reform infrastructure that certainly is in the spirit of my proposal.  Specifically, this reform law provides for the creation of what is called the Cannabis Expungement Board, which is described a bit at this new official Minnesota website:

The legislation calls for automatically expunging low-level cannabis convictions and for creating a Cannabis Expungement Board, which will review felonies for expungement or resentencing.  Expungement seals a person’s conviction record, making the record not publicly accessible from the Bureau of Criminal Apprehension. Sealing records is intended to remove barriers for people with cannabis-related offenses who are subject to a background check for a job or housing....

The Cannabis Expungement Board will consist of the following members:

• the Chief Justice of the Supreme Court or a designee
• the Attorney General or a designee
• one public defender, appointed by the Governor upon recommendation of the State Public Defender
• the Commissioner of Corrections or a designee
• one public member with relevant experience, appointed by the Governor

This local press piece provides some more details about the remedial marijuana efforts called for in the new Minnesota law:

What crimes would be expunged under the bill?

Minnesotans with misdemeanor marijuana charges would see their records cleared, and a new Cannabis Expungement Board would evaluate expungement for felony marijuana crimes on a case-by-case basis.

How many Minnesotans would be eligible for expungement?

More than 60,000 misdemeanor marijuana cases would be eligible for automatic expungement when the bill is signed into law, the Minnesota Bureau of Criminal Apprehension (BCA) estimates.  That includes cases the defendant won or had dismissed, wiping out all records of offenses from arrest to sentencing.  The BCA told lawmakers that it could take the agency up to a year to finish expunging all of the misdemeanor records.

The BCA doesn't have an estimate for the number of felony-level marijuana cases that would qualify for review by the Cannabis Expungement Board, a spokeswoman said.  That's because the state's criminal history system is unable to sort felony-level drug cases by the type of drug that was used.  A manual review of felony cases would be required.

I am going to be very interested in following the work of Minnesota's Cannabis Expungement Board.  Perhaps if all goes well, Minnesota might give this board responsibility to advance expungements and resentencings more generally.

Prior related writings:

• "Leveraging Marijuana Reform to Enhance Expungement Practices" (from 2018)
• "How States Can Ensure That Today's Marijuana Reforms Also Ameliorate Harms Inflicted on Past Offenders" (from 2018)
• "Ensuring Marijuana Reform Is Effective Criminal Justice Reform" (from 20202)

"Enforcing Marijuana Prohibitions: Prosecutorial Policy in Four States"

The title of this post is the title of this new paper now available via SSRN and produced jointly by The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center and the University of North Carolina School of Law's Prosecutors and Politics Project. Here is its abstract:

As more states have legalized and decriminalized marijuana, the enforcement of criminal laws prohibiting the personal possession of marijuana has become more controversial in states where cannabis remains illegal.  Yet, very little is understood about how other prosecutors enforce criminal prohibitions on the personal possession of marijuana.  This study aims to fill this gap.  It systematically examines prosecutorial enforcement of laws prohibiting the personal possession of marijuana in four states that have not legalized medical or adult-use marijuana.  The study had four major goals: (1) to determine what enforcement policies had been adopted by incumbent prosecutors, (2) to determine the enforcement platforms of candidates running for the office of local prosecutor, (3) to explore the reasons and reasoning behind those policies and platforms, and (4) to determine what information, if any, was accessible to voters about the issue.

As flagged in this post over at my other blog, this study will be discussed at an onlne event next week titled "Prosecuting Cannabis: Approaches from States without Legalization."  Folks can register for this event here, and this event page provides some background along with the scheduled panelists.

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

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

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

Outgoing Pennsylvania Gov included high-profile artist in final batch of record-setting clemency grants

Pennsylvania Governor Tom Wolf has only a few more days in office, and he is closing out a tenure that has been record setting in the use of clemency authority.  This local article discusses that record as well as the high-profile clemency recipent in the last batch of grants:

Pennsylvania Governor Tom Wolf has pardoned Philadelphia rapper Meek Mill of his possession of drugs and weapons charges from 2008....

Wolf has issued more than twice the amount of pardons granted by any of his predecessors, with at least a quarter of them targeting non-violent marijuana offenses, his administration announced Thursday.

Wolf, a Democrat, signed his final 369 pardons this week, for a total of 2,540 since he took office in 2015. He surpassed Democratic Gov. Ed Rendell's record of 1,122 granted pardons. Of the pardons, 395 were part of the expedited review process for nonviolent marijuana-related offenses. Another 232 were part of the PA Marijuana Pardon Project, which accepted applications through the month of September.

"I have taken this process very seriously - reviewing and giving careful thought to each and every one of these 2,540 pardons and the lives they will impact," Wolf said in a statement. "Every single one of the Pennsylvanians who made it through the process truly deserves their second chance, and it's been my honor to grant it."

A pardon grants total forgiveness of the related criminal conviction and allows for expungement.

Following Prez Biden's lead, Oregon Gov pardons over 47,000 marijuana possession convictions

As reported in this local artcle, around "45,000 people previously convicted of marijuana possession in Oregon will be pardoned and $14 million in fines forgiven, the Governor's Office announced Monday."  Here is more:

Gov. Kate Brown is pardoning the 47,144 convictions for possession of one ounce or less of marijuana going back several decades. Criminal convictions, even for possessing small amounts of marijuana that would be legal now, can be barriers to employment, housing and education.

“No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana — a crime that is no longer on the books in Oregon,” Brown said in a statement Monday. “Oregonians should never face housing insecurity, employment barriers, and educational obstacles as a result of doing something that is now completely legal, and has been for years. My pardon will remove these hardships." She noted that while all Oregonians use marijuana at similar rates, Black and Latino people have been arrested, prosecuted and convicted of marijuana possession at disproportionate rates.

Officials with the American Civil Liberties Union applauded Brown’s action on Monday, saying her move followed an important step by President Joe Biden last month to pardon thousands of people nationwide of federal convictions for marijuana possession. Officials with the ACLU of Oregon said Brown is the first governor take this action on pardoning. Sandy Chung, executive director of ACLU of Oregon, said they were grateful for Brown's use of clemency to address the state's outdated and racially-biased practices, including policies from the failed "War on Drugs."...

According to the Governor's Office, the pardon applies to electronically available Oregon convictions for possession of one ounce or less of marijuana in pre-2016 cases in which the person was 21 years of age or older, where this was the only charge, and where there were no victims. This pardon does not apply to any other offense related to marijuana or other controlled substances. More information can be found online.

Following Brown's pardon, the Oregon Judicial Department will ensure that all court records associated with the pardoned offenses are sealed. About $14 million in unpaid court fines and fees associated with the pardoned convictions will be forgiven. The pardoned marijuana convictions will no longer show up on background checks of public court records, but the conviction may show up on background checks conducted by law enforcement officials or licensing authorities as a pardoned conviction....

Jessica Maravilla, policy director of ACLU of Oregon, said by eliminating $14 million in fines and fees, Brown is breaking down a massive barrier many have to housing, schooling and jobs. "For low-income communities and people of color, they can result in continued entanglement in the criminal legal system," she said. "The Governor’s forgiveness of $14,000,000 in fines and fees is a significant step in addressing unjust systemic burdens created by prior convictions — especially, in this case, for a crime that no longer exists.”

The official statement from Gov Brown's office is available at this link.

"Assessing the Status of Minors in Possession: Marijuana Versus Alcohol"

The title of this post is the title of this new article available via SSRN authored by Mitchell F. Crusto, Jillian Morrison and Laurel C. Taylor.  (Disclosure: this paper was supported by a grant from the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.)  Here is its abstract:

The legalization and decriminalization of marijuana at state level has an impact on adult use, as well as on use by minors. In many jurisdictions, minor use and possession of marijuana is regulated much like that of alcohol.  This paper examines the statutory language of laws regulating possession of marijuana by minors across states in which marijuana is legalized, decriminalized, and illegal.  From there, data was collected to look at the arrest rates for minors in three case study jurisdictions.  The purpose of this comparison was to reveal how laws criminalizing minors in possession of marijuana are carried out as reflected in the arrest rates of reporting jurisdictions. 

Overall marijuana arrests for minors in possession decreased from 2018 to 2020 across every state case example provided.  Additionally, based on the case examples provided in those states that decriminalized marijuana, arrests for juveniles were lower overall than those with legalized or illegal status.  While further analysis is needed, the study found positive results, noting that states across the board appear to be decreasing arrest rates for marijuana possession, and more and more states are looking to alcohol violation statutes to craft their marijuana violation statutes for minors.  Accordingly, the public shift in thinking about marijuana appears to be impacting the practicalities of drafting statutes and mandating arrests for the better: to create a less hostile approach with less punitive impact on minors.

New DEPC resource highlights "Drugs on the Ballot: 2022" (and in prior elections)

I am very pleased to be able to promote this great new resource page, titled "Drugs on the Ballot: 2022," authored by the great staff at the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  The page not only details  cannabis-related ballot initiatives that voters will be considering in five states this November, but it also provides a set of maps and timelines of efforts to enact and implement state cannabis reforms over time, via both ballot measures and legislation. 

This new resource was developed in conjunction with this exciting online DEPC event scheduled for later this month (October 25 at noon EDT) titled "Cannabis on the Ballot: Lessons Learned from the Marijuana Reform Movement."  The registration page for the event is at this link, and here is its description:

Ever since California voters legalized medical marijuana via ballot initiative in 1996, many advocates in the U.S. have embraced direct democracy as a means to bypass reluctant legislatures to advance marijuana legalization and broader drug policy reforms. But reforms advanced through ballot initiatives can raise distinct political and policy challenges, and recent initiatives have sometimes produced legal uncertainty about regulatory regimes and even new limits on the availability of direct democracy.  On the eve of another major election, please join our panel of experts as they discuss the pros and cons of efforts to enact and implement drug policy reforms via the ballot box and these efforts’ impact on direct democracy more generally. 

Reminder on a call for papers for "Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms"

As first flagged here a couple of months ago, the Drug Enforcement and Policy Center at the Moritz College of Law at The Ohio State University and the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University are organizing a symposium titled “Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms.” The deadline for the new call for papers for this event is approaching, so I wanted to provide another link to the full call here and also report the basics:

The conference is committed to exploring, from a variety of perspectives and with the help of a variety of voices, how to better understand and assess the relationship between drug reforms (broadly defined, including clemency policy and criminal justice reform) and public safety (broadly defined, with an emphasis on violent and serious crime).  [The conference will take place at Arizona State University, Phoenix, AZ from March 14-16, 2022.]

Background

In 1996, California kicked off a new state-driven law reform era through a ballot initiative legalizing medical marijuana.  In subsequent decades, as dozens of states legalized marijuana use, various advocates, public officials, and researchers warned about the possibility of dire public safety consequences.  More drug crimes, more general criminality, more drugged driving, and all sorts of other public safety harms were often mentioned as the possible short- or long-term consequence of significant state-level marijuana reforms.

As of summer 2022, there are 37 states with robust medical marijuana regimes and 19 with full adult-use marijuana programs.  The continued support for state-level marijuana reforms seems to reflect, at least in part, the fact that so far, researchers have not documented direct connections between marijuana reforms and adverse public safety outcomes.  Though crime is a growing public concern given the rise in violent crimes in recent years, few advocates or researchers have documented clear connections or correlations between jurisdictions that have reformed their marijuana laws and increases in crimes.

As marijuana reforms have spread, so too has discussion of broader drug reforms such as decriminalization or legalization at both state and local level, as well as relief from drug-war excesses through clemency and expungement.  But given the increasing concern about violent crime, many advocates and lawmakers are wondering whether past and possible future drug policy reforms may be advancing or undermining the broad interest in creating safe and stable communities. As the country moves away from marijuana prohibition, a fully informed discussion of drugs, violence, and public safety is needed now more than ever.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication in Spring of 2024.

Though proposed papers can and should look to explore the relationship between drug reforms and public safety in any number of diverse ways, the conference organizers are particularly interested in explorations of the impact of: (a) legalization of medical and/or adult-use marijuana, (b) drug decriminalization efforts, and (c) back-end relief efforts (e.g., clemency) — on crime and violence, the enforcement of criminal laws, and the operation of criminal justice systems.

Deadlines and Length of Paper

A proposed abstract of no more than 300 words are due on October 17, 2022.  Abstracts can be submitted to Jana Hrdinova at [email protected].

Accepted researchers will be notified by November 18, 2022.

Participants should plan to have a full draft to discuss and circulate by March 1, 2023. Papers may range in length from 10,000 words to 25,000 words.

Final papers for publication will be due on August 1, 2023.

US Senate hearing on "Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms"

The quoted portion of the title of this post is the title of this hearing scheduled for tomorrow afternoon by the Subcommittee on Criminal Justice and Counterterrorism of the US Senate Judiciary Committee.  Based on the topic alone, this hearing seemed worth checking out.  But the folks at Marijuana Moment already have the list of planned witnesses, and now I am even more eager to have an eye on this event.  Here are the details (with links from the original):

Senators on a key Judiciary subcommittee are set to hold a hearing on marijuana reform on Tuesday — and the witnesses include former federal cannabis prisoner Weldon Angelos and anti-marijuana proselytizer Alex Berenson.

The Judiciary Subcommittee on Criminal Justice and Counterterrorism, chaired by Sen. Cory Booker (D-NJ), has five witnesses scheduled to testify, according to a list obtained by Marijuana Moment.  The list has not been formally announced by the panel yet, and representatives of the chair and ranking member did not immediately respond to emails from Marijuana Moment.

Here’s the list of witnesses for the hearing, titled “Decriminalizing Cannabis at the Federal Level: Necessary Steps to Address Past Harms.”

MAJORITY WITNESSES:

Malik Burnett, a pro-legalization physician who formerly worked for the Drug Policy Alliance (DPA) and previously testified in favor of reform before the U.S. House of Representatives. He currently serves as the medical director of harm reduction services at the Maryland Department of Health.

Weldon Angelos, a former federal marijuana prisoner who received a presidential pardon under the Trump administration and has continued to push for clemency for other people with federal cannabis convictions through his organization The Weldon Project.

Edward Jackson, chief of police at the Annapolis Police Department and a speaker at the pro-reform group Law Enforcement Action Partnership (LEAP).

MINORITY WITNESSES:

Steve Cook, former federal prosecutor who previously served as president of the National Association of Assistant United States Attorneys. Known as a drug warrior who supports taking a carceral approach in criminal justice, Cook was appointed by then-Attorney General Jeff Sessions to work in DOJ as associate deputy attorney general and led a marijuana review panel for the department ahead of the Trump administration’s rescission of Obama-era cannabis enforcement memos.

Alex Berenson, former New York Times reporter who has faced ample criticism over his questionable research linking marijuana use to serious mental illness and violent crime, and who was at one point banned from Twitter for claims he made about COVID-19 vaccines.

The choice of witnesses offers a preview of the kind of debate that the majority and minority will take up at the hearing.  And the fact that Berenson was picked by Senate Republicans to go before the panel signals that there will be diametrically opposed perspectives represented at the meeting.  More specifically, it hints that there will be drama, as Berenson is not a person who’s known for subtlety and has became notorious on social media for offering contrarian takes on current events, particularly as they concern marijuana and COVID.

I share the view that having Alex Berenson as one of the witnesses here can and will add drama to this hearing, though I think all of the scheduled witnesses could be described as "headliners."  I am hopeful we will get some written statements from these witnesses before the actual hearing, and it will be interesting to see how both questions and answered are presented at the live event.  Interesting times.

Rounding up some criminal justice postings from Marijuana Law, Policy & Reform

I suppose I would come off as a bit of a sativa Scrooge if I did not post something about marijuana on 4/20.  Because I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in quite some time, I will use this very unofficial holiday as an excuse to round up some criminal justice postings from there.  A number of these posts involve terrific work by students in my seminar collecting readings on the topics of their research, so be sure to check them all out:

• Florida official sues feds, stressing Second Amendment and Rohrabacher-Farr Amendment, on gun purchasing limits for medical marijuana patients

• "Cannabis decriminalization and racial disparity in arrests for cannabis possession"

• Modern day Fiorello La Guardia?: US Senate candidate Gary Chambers smokes marijuana in new campaign ad protesting criminalization

• Guest post: "First Circuit Splits with Ninth Circuit Over Meaning of Rohrabacher-Farr Amendment"

• Notable Code for America paper on "Automatic Record Clearance Policies in Legalization and Decriminalization Legislation"

• Student presentation exploring marijuana records and broader record clearing realities

• Student presentation on expunging marijuana records effectively in Ohio

• Student presentation on marijuana reform and the Fourth Amendment

Wouldn't a few marijuana offenders be a "light lift" for Prez Biden's first clemency grants?

The question in the title of this post is prompted by this lengthy New York Post article headlined "Ahead of 4/20, pot prisoners push Biden to honor campaign pledge to free them." I recommend the piece in full, and here are excerpts:

On the eve of the 4/20 cannabis holiday, federal inmates again are wondering if and when President Biden will make good on his 2020 campaign pledge to free “everyone” locked up on marijuana charges.  About 2,700 inmates are behind federal bars on pot-related charges — even though 18 states and DC now allow recreational use of the drug and two-thirds of Americans support legalization.

They include Pedro Moreno, 62, who is serving a life sentence after pleading guilty to distributing weed imported from Mexico from 1986 to 1996. “I will die in prison for marijuana unless I receive executive clemency,” Moreno told The Post....

Clemency advocates recently met with White House staff and believe Biden may eventually intervene.  But that it may not happen anytime soon as other initiatives take priority, such as commuting the sentences of people released temporarily from prison due to the COVID-19 pandemic....

Luke Scarmazzo, 41, has served 14 years of a 22-year sentence for running a medical marijuana operation in California and told The Post that he’s also struggling to maintain hope.  “When President Biden made those statements on the campaign trail, my family and I were very hopeful that our nightmare was finally coming to an end,” Scarmazzo said. “We are now nearly two years into President Biden’s term and we’re wondering when he will make good on his promise.”

Donald Fugitt, 37, noted how the country has changed in the decade since he was arrested in 2013.  “Another 4/20 and everybody is smoking and making money, but I’m still in a COVID-19-infested prison,” said Fugitt, a North Texas native who gets out in 2024 unless Biden reduces his sentence.  “I’ve accepted responsibility for my participation in a marijuana conspiracy. Everyone on my case is home except me. This was my first offense.”

Federal pot inmates include Lance Gloor, 43, who has two years left of a 10-year sentence for running dispensaries in Washington that he says sold state-legal medical marijuana, though federal prosecutors disagreed.  Gloor’s mother, Tracie Gloor Pike, says he had a severe case of COVID-19 last year and suffers rare complications....

Biden said on a debate stage in 2019: “I think we should decriminalize marijuana, period.  And I think everyone — anyone who has a record — should be let out of jail, their records expunged, be completely zeroed out.” But Biden hasn’t yet used his clemency powers to release anyone from prison....

Weldon Angelos, a former federal marijuana inmate and co-founder of the group Mission Green, helped craft a rubric that would ensure only non-violent prisoners are released and told The Post he has been involved in talks with the White House. “Candidate Biden promised to use his pardon power to free those still incarcerated federally for cannabis offenses, which gave a lot of hope to many,” Angelos said. “We have had a number of conversations with the White House of this topic and believe that Biden will keep his campaign promise. When that happens is another matter entirely, but we are encouraged.”...

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m not sure why we are still waiting for President Biden to free all the pot prisoners.” Povah said, however, that “I’m encouraged to see there is a new pardon attorney,” Elizabeth Oyer, who will vet clemency paperwork.  “[Oyer is] a former public defender. She is a refreshing choice since previous pardon attorneys have typically been prosecutors who often have a punitive mindset toward applicants,” Povah said....

In January 2021, then-President Donald Trump commuted the sentences of seven people serving life terms for marijuana — including two men who were given life without parole under the three-strikes provision of the Biden-authored 1994 crime law.

Michael Pelletier, a 65-year-old wheelchair-bound paraplegic, was among those released by Trump. He had a life sentence for smuggling Canadian pot into Maine before both legalized recreational markets.

“I thank President Trump every day that I wake up in a comfortable bed in a beautiful home in Florida surrounded by loving family, rather than the screeching sound of the PA system announcing another lock down due to violence,” Pelletier said. “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

A few on many prior recent related posts:

• On Presidents Day, coalition calls for Prez Biden to issue "a general pardon to all former federal, non-violent cannabis offenders in the U.S."
• "When Will Joe Biden Start Using His Clemency Powers?"
• New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders 
• Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season 
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
• Justice Department has new Pardon Attorney who is a former public defender ... which means ...? 

Colorado Gov Polis demonstrates, with high-profile commutation and mass pardons, the many powers of clemency

This press release from yesterday, headlined "Governor Polis Grants Clemency, Including Marijuana Pardons," documents that it is never too late in the year for an executive leader to lead with the clemency pen.  Here are a few highlights from the release:

Governor Jared Polis announced that he has granted three commutations, fifteen individual pardons, and signed an Executive Order granting 1,351 pardons for convictions of possession of two ounces or less of marijuana.... 

The marijuana pardon applies to state-level convictions of possession for two ounces or less of marijuana, as identified by the Colorado Bureau of Investigation (CBI). The individuals who have these convictions did not need to apply for pardons, and the Governor’s Office has not conducted individual assessments of the people who have been pardoned through this process.  Individuals convicted of municipal marijuana crimes, or individuals arrested or issued a summons without a conviction, are not included in the pardon.... 

“Adults can legally possess marijuana in Colorado, just as they can beer or wine. It’s unfair that 1,351 additional Coloradans had permanent blemishes on their record that interfered with employment, credit, and gun ownership, but today we have fixed that by pardoning their possession of small amounts of marijuana that occurred during the failed prohibition era,” said Governor Polis.

The Governor also granted commutations to Ronald Johnson, Nicholas Wells, and Rogel Aguilera-Mederos. Mr. Johnson is granted parole effective January 15, 2022, with terms and conditions of parole to be set by the Parole Board. Mr. Wells is parole eligible on January 15, 2022. Mr. Aguilera-Mederos’ sentence is reduced to 10 years. 

The Governor granted pardons to Travis Cleveland, Anthony Formby, Rudolph Garcia, Stephanie Gssime, Michael Jordan, Timothy Lewis, Reginald McGriff, Henry Moreno, Joseph Murillo, Michael Navarro, Ryan Nguyen, Shawn Phillips, Armando Solano, Mohammed Suleiman, and Theresa Yoder.

The name Rogel Aguilera-Mederos, who had his sentence reduced to 10 years, may sound familiar. He is the trucker whose case was discussed in this post a few week ago originally sentenced to 110 years for a deadly crash due to mandatory minimum sentencing statutes.

Here is some press coverage of Gov Polis' clemency work:

• "Gov. Polis grants clemency, reduces trucker's 110-year sentence to 10 years"
• "Colorado governor pardons 1,351 Coloradans convicted of marijuana possession"

Detailing "Mellowed Federal Enforcement" and other federal stories from Marijuana Law, Policy & Reform

In a recent post over at Marijuana Law, Policy & Reform, I have already noted a new essay, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition" that I had the pleasure of co-authoring with my colleague Alex Fraga.  The forthcoming short piece is now up on SSRN, and here is part of its abstract:

Over [a] quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

In addition to welcoming feedback on this short piece, I also figure it would be useful to highlight a few additional posts with other recent coverage of federal reform issues and dynamics over at MLP&R:

• Notable new CRS report on ways a President could legalize or decriminalize marijuana at the federal level

• Some early coverage of big new federal GOP bill, the States Reform Act, to legalize marijuana

• "New GOP weed approach: Feds must ‘get out of the way’" ... which is an important historic drug policy theme

• Highlighting the persistent Democratic divide over federal marijuana reform

• Another Veterans Day with veterans still not getting support when it comes to medical marijuana access

• Latest Gallup poll indicates that over two-thirds of Americans still support making marijuana legal

Two exciting DEPC events on tap in coming days

I am pleased to be able to promote here a couple of online events scheduled this week and next organized by OSU's Drug Enforcement and Policy Center (which I help direct).  I am quite excited about both events, and here are the titles and short descriptions (with a link to see the panelists and to register):

"Addressing Harm: Opioid Settlement Background and Historical Context"

Date: Wednesday, Nov. 10, 2021    Time:  Noon - 1:15 p.m. (Register here)

The opioid epidemic that has swept across the United States in the last decade has had a devastating impact on individuals as well as their families and communities. While the true cost of the epidemic is most likely incalculable, states and local governments have fought hard to seek damages from various companies along the opioid supply chain to help address the resulting crises plaguing their communities.

Join the Drug Enforcement and Policy Center and Harm Reduction Ohio for the first panel in a series on Ohio's opioid settlement.  The purpose of this panel is to understand how opioid litigation was pursued and the settlements that resulted. The panel will look back at similar litigation, such as the tobacco settlement, to see how the current settlement compares to earlier public health litigation and what lessons can be learned.

"Cannabis Crossroads: What’s in Store for Marijuana Reform in Ohio?"

Date: Friday, Nov. 19, 2021    Time:  Noon - 1:30 p.m. (Register here)

Join the Drug Enforcement and Policy Center and Natural Therapies Education Foundation for a virtual discussion featuring panelists representing current Ohio cannabis reform endeavors. The event will provide attendees with knowledge about pending initiatives and legislation, as well as a vision of what the future may hold for cannabis in Ohio.

Rounding up some recent postings from Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in quite some time, so here is a sampling of some posts in recent months at intersection of criminal justice reform and marijuana reform from MLP&R:

• "Smoke and Fears: The Effects of Marijuana Prohibition on Crime"

• Drug Policy Alliance's federal marijuana reform recommendations

• Medical marijuana prisoner cites recent Justice Thomas statement questioning federal prohibition in support of sentence reduction

• Is marijuana legalization likely to be a staple of all major Democratic campaigns in 2022?

• Senators Booker and Warren call upon DOJ to "decriminalize cannabis using its existing authority"

• Full policy brief version of "Blowing Smoke at the Second Amendment"

• "Targeted Marijuana Law Enforcement in Los Angeles, 1914-1950"

• California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison

• "Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"

Still time to register for day two of "Understanding Drug Sentencing" conference

I really enjoyed the first day of the two-day conference being put on by the Drug Enforcement and Policy Center and the Academy for Justice today and tomorrow, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  With a second day still to go, folks can still register for all of of Friday events, on this Agenda page.  Here are times and titles for the three great panels scheduled for Friday, October 8: 

11am – 12:15pm:   Sentencing Criteria as Crazymaker in Drug Cases

12:20pm – 1:35pm:   Reimagining an Antiracist Approach to Drug Sentencing

1:45pm – 3pm:   What Other Alternatives? Thinking Beyond Drug Courts and Sentencing

I thought day one of the symposium was terrific, and it included the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" with former US Attorney General Eric Holder, Jr., author and advocate Piper Kerman, Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon Marbley for the Southern District of Ohio.  I am pretty sure recordings of that great discussion, as well as all the other panels, should be available online before too long.  In the meantime, Kyle Jaeger at Marijuana Moment has this new piece discussing and contextualizing former AG Holder's comments under the headlined "Former U.S. Attorney General Says U.S. Is ‘On The Path’ To Federal Marijuana Decriminalization." 

New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders

As reported in this press release, "150+ artists, athletes, producers, lawmakers, law enforcement officials, academics, business leaders, policy experts, reform advocates, and other professionals, signed a letter to U.S. President Joseph R. Biden, Jr. requesting a full, complete, and unconditional pardon to all persons subject to federal criminal or civil enforcement on the basis of a nonviolent marijuana offense."  (Disclosure: I am a signer of this letter.)  The full letter is available at this link, more about the effort is available here as well as from the press release:

The letter, which was spearheaded by the advocacy group The Weldon Project, includes signatures from celebrities such as Drake, Killer Mike, Deion Sanders, Al Harrington and Kevin Garnett.  Kazan will also participate in a live-streamed event today airing on Vimeo and moderated by Politico reporter Mona Zhang,  at 11:00 a.m. PT to discuss the letter and reinforce the case to provide clemency to all federal nonviolent marijuana offenders.

"The harms of incarceration are obvious, but the pains of federal marijuana convictions transcend prison walls, making it more difficult for someone to get a job, access affordable housing, and receive an education.  A conviction can forever limit an individual's constitutional rights and can put the American dream further out of reach for an entire family. Enough is enough.  No one should be locked up in federal prison for marijuana.  No one should continue to bear the scarlet letter of a federal conviction for marijuana offenses," the letter says, noting that three-quarters of the states have now abandoned the federal government's blanket criminal ban in favor of safe, regulated legal access to marijuana for adults and/or those with qualifying medical conditions.

The request to U.S. President Biden comes at a time when an overwhelming 68% of U.S. adults support the federal legalization of cannabis, and 1 in 3 Americans live in states where cannabis is legal for adults to use.  Thousands of individuals are currently incarcerated in the United States for nonviolent cannabis-related crimes, while countless others have had their rights and livelihoods stripped away because of prior arrests and sentences....

The letter to President Biden points out that a full pardon of federal marijuana offenders is consistent with the Constitution and past practices of presidents from both political parties.  "In 1974, President Ford established a program of conditional clemency for Selective Service Act violators.  In 1977, President Carter issued a categorical pardon to all Selective Service Act violators, closing the book on a costly and painful war.  President Biden has the power to do the same for the federal war on marijuana.  Through his act of constitutional grace, a general clemency will send a clear and powerful message that our country is truly taking a new course on criminal justice policy and practice."  In December of 2020, Angelos was fully pardoned by President Trump.

The stories of those who would be helped by a pardon are compelling: Drake, Meek Mill, Lil Baby, Killer Mike, and dozens of other hip-hop artists, for example, signed on in support of their friend and fellow rapper Ralo, who is facing 8 years for a nonviolent cannabis offense. "I appreciate my friends and peers in the hip-hop community, especially Drake, supporting my clemency because it's just not right that corporations are allowed to violate federal law and become millionaires while people like myself go to prison for years," Ralo said. "This is hypocrisy. I hope that Joe Biden honors his campaign promise and grants us clemency without delay, so I can return to my family and community."

More encouraging(?) news from Capitol Hill on federal statutory criminal justice reform efforts

Axios has this interesting new piece headlined "Senate plans barrage on crime," which provides an encouraging update on the commitment of some key Senators to get additional federal criminal justice reforms to the finish line soon. Here are some details (with a bit of my emphasis added):

Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) are working to win Senate passage of a big criminal justice reform package this Congress.

Why it matters: Crime is spiking in big cities. Sen. Tim Scott (R-S.C.) is still working on a police reform measure.  The bipartisan dynamic duo atop the Senate Judiciary Committee is stepping up, passing three piecemeal bills out of their committee....

What they're saying: It's these three measures, Grassley told Axios, they "hope to package along with potentially other proposals to pass the Senate sometime this Congress." Durbin told Axios in his own statement that he's "committed to bringing these bills to the Senate floor this Congress."

What to watch: The final package also may include a measure for the thousands of inmates who were released to home confinement during the pandemic but will be forced to return behind bars when it's over, a Republican Senate staffer told Axios.  In addition, it may address sentencing disparities in crack and powder cocaine offenses.

One challenge will be the crime spike, which has the potential of sapping support from senators afraid of being branded soft on crime.  "Negotiations have always been an important part of enacting criminal justice reform, and this time will be no different, especially given the increase in crime we are seeing across the country,” Grassley said.

Between the lines: It's still early, but advocates said they need to take advantage of any opening they see for criminal justice reform — especially since police reform has stalled. They pointed to the House Judiciary Committee recently voting out the bipartisan EQUAL Act.  It would eliminate disparities in sentencing for powder and crack cocaine offenses and allow some inmates to appeal their sentence.  Even normally critical Republicans like Rep. Louie Gohmert (R-Texas) are cosponsors for the bill, which they take as a good sign.  That has supporters believing whatever emerges from the Senate can be packaged with House measures in conference committee and, ultimately, pass Congress.

I use the term "encouraging(?)" to describe this news in my post title because "this Congress" only means sometime before January 3, 2023.  Given how hard it is to get a divided Congress to complete anything these days, I suppose I should find any talk of any serious commitment to getting anything done to be just "encouraging."  But because of the modest nature of the "three piecemeal bills" primarily being discussed here (details in links below), I have been hoping that one or more of these bills might have a real change of getting to the desk of Prez Biden before the end of this year.

That all said, if these three Durbin/Grassley bills were to be combined with the EQUAL bill to reduce crack sentences and with some statutory fix to the pandemic home confinement problem, then I think all sentencing advocates would have something to really get excited about.  Notably, the FIRST STEP Act ended up having a lot of smaller reform proposals rolled into it, and I would love to see  five good reform proposals (and a few more) put together so that reform legislation can really improve a federal criminal justice system broken in so many ways.

Last but not least, I cannot complete this post without emphasizing, yet again, how effective implementation of any congressional reforms demands a well-functioning US Sentencing Commission.  The FIRST STEP Act is now nearly three years old, and the absence of a fully functioning USSC has impeded needed follow-up reforms and analyses that only the USSC can complete.  All the Durbin/Grassley bills and others in this space likewise need a working USSC to aid implementation (and a functional USSC could and would now be able to aid legislative analysis and consideration of various proposals).  But, with no USSC nominations from Prez Biden yet named, I am now fearing we may not ever get a full slate of Commissioners during "this Congress."

Some of many prior related posts:

• Senators Durbin and Grassley introduce new "First Step Implementation Act"
• Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"
• Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act" 
• Senate Judiciary Committee to mark up three criminal justice and sentencing reform bills
• Senate Judiciary Committee advances three criminal justice and sentencing reform bills
• Encouraging(?) update on prospects for series of small federal sentencing reform bills
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine 
• House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

Let freedom ring via recent postings at Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in a little while, and doing so today seems especially appropriate as we enjoy a last day for officially celebrating our nation's founding in a commitment to "Life, Liberty and the pursuit of Happiness." So, here are some freedom ringing highlights (often at the intersection of criminal justice reform and marijuana reform) from MLP&R:

• Cannabis Freedom Alliance releases "Recommendations for Federal Regulation of Legal Cannabis"

• Marijuana liberty in America showing rapid growth as we mark Independence Day 2021

• What do Connecticut, South Dakota and Virginia all have in common today?

• Justice Thomas talks up reconsidering Raich, but has no compatriots (yet)

• "Seeds of Change: Strategies to create an equitable cannabis industry"

• Red state marijuana reforms not yet leading to GOP Senator support for federal reform

• Alabama Gov signs medical marijuana legislation just days after Mississippi Supreme Court blows up medical marijuana initiative

• "Changes in traffic crash rates after legalization of marijuana: results by crash severity"

• Connecticut on verge of becoming 18th state to fully legalize marijuana (and fifth state in 2021)

• "Marijuana Tax Revenue in States that Regulate Marijuana for Adult Use"

• Another notable accounting of marijuana tax revenues

• "Illegal drug market responses to state recreational cannabis laws"

• "Data, Damn Lies, and Cannabis Policy: Reefer Madness and the Methodological Crimes of the New Prohibitionists"

Lots of criminal justice discussion of later at Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in a little while, and I am especially eager to flag again this earlier post requesting information from any and all folks teaching (or interested in teaching) a law course on drugs generally or cannabis in particular (sought via a short survey at go.osu.edu/teaching-drugs-survey).  In addition, below are some more recent posts at the intersection of criminal justice reform and marijuana reform from MLP&R: 

• "Five Decades of Marijuana Decriminalization"

• DEPC event: "Social Equity 2.0: Lessons From Recent State Developments"

• Equity getting lots of attention, but still much work to do, as social justice becomes centered in marijuana reform efforts

• Alabama Gov signs medical marijuana legislation just days after Mississippi Supreme Court blows up medical marijuana initiative

• Effective coverage of marijuana expungement efforts and work still to do

• Notable new GOP bill for ending federal marijuana prohibition

• "Comparing Permissive Illegality Frameworks in Denmark and the United States"

• Notable working group releases new "Principles for Federal Cannabis Regulations & Reform"

• "New Market Entrants and Uncertain Drug Policy in the United States"

• "Inequitable Marijuana Criminalization, COVID-19, and Socioeconomic Disparities: The Case for Community Reinvestment in New York"

Hoping many more folks will focus on "how" as marijuana reform continues to gain momentum

German Lopez has this new Vox piece, headlined "Marijuana legalization has won," that I find both effective and frustrating. The piece is effective because it reviews well the modern political realities of marijuana reform, while not even mentioning the modern policy and practical realities of reform. Here is how the piece starts:

The US is nearing a tipping point of sorts on marijuana legalization: Almost half the country — about 43 percent of the population — now lives in a state where marijuana is legal to consume just for fun.

The past two months alone have seen a burst of activity as four states across the US legalized marijuana for recreational use: New Jersey, New York, Virginia, and, on Monday, New Mexico.

It’s a massive shift that took place over just a few years. A decade ago, no states allowed marijuana for recreational use; the first states to legalize cannabis in 2012, Colorado and Washington, did so through voter-driven initiatives.  Now, 17 states and Washington, DC, have legalized marijuana (although DC doesn’t yet allow sales), with five enacting their laws through legislatures, showing even typically cautious politicians are embracing the issue.

At this point, the question of nationwide marijuana legalization is more a matter of when, not if.

I started teaching a new law school class and started a new law blog about marijuana reform topics way back in 2013 because I had reason to believe, even back, then that political and social forces were already lining up to make marijuana reform "more a matter of when, not if."  But, as I have paid ever more attention to these issues for now nearly a decade (and even helped start a new law school center to study these issues), I have grown even more aware of the many challenges surrounding the "how" of marijuana legalization.  And, as the title of this post suggests, I keep hoping that even more and more serious people will start spending more and more time examining and reviewing the pros and cons of different approaches to reform.  Though there has been a growing number of public health and criminal justice researchers and academics paying more attention to these topics, I still see so much important "how" work that needs to be done and still relatively few folks on the job.

That said, as I try to highlight over at Marijuana Law, Policy and Reform, I suppose I should celebrate that this even more policy discussion and academic writing about the "how" 

• "Nowhere to Now, Where? Reconciling Public Cannabis Use in a Public Health Legal Framework"
• "New Market Entrants and Uncertain Drug Policy in the United States"
• "American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears and What to do About It"
• Notable new group, the Cannabis Freedom Alliance, seeks to advance end of marijuana prohibition
• "Economic Recovery Through Interstate Cannabis Commerce"
• "Inequitable Marijuana Criminalization, COVID-19, and Socioeconomic Disparities: The Case for Community Reinvestment in New York"
• "Legal Strategy During Legal Uncertainty: The Case of Cannabis Regulation"
• "Interstate Commerce in Cannabis"
• Effective accounting (with great visuals) of marijuana "legalization in three degrees"
• Seeking more information and input on teaching about marijuana reform and drug issues in law school  

A request for lawprof input and other posts of note from Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform since mid January, and I am especially eager to flag this new post requesting information from folks teaching (or interested in teaching) a law course touching on drugs or the legal structures around cannabis (sought via a short survey at go.osu.edu/teaching-drugs-survey).  The first link below provides more context for this request, and thereafter you will find links to other recent posts at the intersection of criminal justice reform and marijuana reform from MLP&R: 

• Seeking more information and input on teaching about marijuana reform and drug issues in law school

• Inequitable Marijuana Criminalization, COVID-19, and Socioeconomic Disparities: The Case for Community Reinvestment in New York"

• Marijuana use still proving hurdle to working in White House despite Prez Biden's advocacy for reform

• US Senate caucus releases notable new report, "Cannabis Policy: Public Health and Safety Issues and Recommendations"

• "Economic Recovery Through Interstate Cannabis Commerce"

• Effective accounting (with great visuals) of marijuana "legalization in three degrees"

• "The Problem of Driving Under the Influence of Drugs: The Views of Four Former 'Drug Czars'"

• "Legal Strategy During Legal Uncertainty: The Case of Cannabis Regulation"

• Mexico now well on the path to becoming the world's largest legal marijuana market

• "Interstate Commerce in Cannabis"

• AG-nominee Merrick Garland elaborates his views on marijuana prohibition enforcement

• "Blowing Smoke at the Second Amendment"

• New Jersey becomes officially the (lucky?) 13th state to fully legalize marijuana for adult use

• On Presidents Day, coalition calls for Prez Biden to issue "a general pardon to all former federal, non-violent cannabis offenders in the U.S."

Some turn-of-the-year highlights from Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform since early December, and I am especially eager to flag my new article (authored with Alex Kreit), "Ensuring Marijuana Reform Is Effective Criminal Justice Reform."  So here are links to various recent posts at the intersection of criminal justice reform and marijuana reform from MLP&R:

• Catching up on a remarkable political moment for marijuana reform with the help of Marijuana Moment

• Interesting review of the incoming Cabinet with an eye on cannabis policy

• SAM releases notable list of 10 marijuana reform recommendations for the Biden Administration

• Notable NORML accounting of marijuana reform highlights in 2020

• "Illinois Governor Announces Half A Million Marijuana Expungements And Pardons"

• Update on the state of marijuana expungements in the Prairie State

• "How state marijuana legalization became a boon for corruption"

• "Guidance Documents: The Sirens of the Cannabis Odyssey"

• "America’s longest serving nonviolent cannabis prisoner," Richard DeLisi, released from Florida prison

• "Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

Highlighting DEPC call for proposals for new Marijuana Research Grants Program

I have highlighted in this prior post at my other blog the new research grant program from the Ohio State Drug Enforcement and Policy Center (DEPC).  DEPC's goal is to fund certain types of new work specifically in the marijuana research/policy space.  Here is the basic overview of the call for proposals:

The Drug Enforcement and Policy Center (DEPC) invites researchers from universities and independent research centers in the United States to submit proposals for funded research focused on implementation and policy impacts of marijuana legalization.  We are specifically interested in research addressing questions related to public health, criminal justice and public safety, as well as their various intersections.  In selection for funding, we are likely to prioritize shorter-term research projects that can help inform the work of lawmakers, regulators and advocates eager to promote evidence-based best practices and policies in future reforms efforts.

In general, grant requests should not exceed $50,000. However, projects exceeding this amount are still encouraged to apply as additional funding could be appropriated.  The deadline for first-round submissions is January 11, 2021; a second round of funding may be announced in February 2021 after the first-round awards are announced.

The full call for proposals can be found here, and this document provides these additional details on topics of interest in this grant program:

Topics may include, but are not limited to, the following:

• Impacts on law enforcement including resource allocation, changes to existing arrest/charging practices, use of fines and fees for enforcement, and broader effects on crime and community relations.
• Impacts on the criminal justice system including arrests/incarceration rates, outcomes achieved by changes in criminal penalties with cannabis legalization and/or decriminalization, impacts on the juvenile justice system.
• How federal law currently impacts state-level marijuana reforms and practices across a range of areas (e.g., banking, employment, housing, medical practice and research, tax), and what federal reforms might most effectively and efficiently improve state practices.
• Changes in rates of diagnosis for cannabis-related substance use disorders; need, availability and efficacy of treatment programs and other counseling services for problematic cannabis use.
• Impacts and attitudes toward cannabis reform in specific neighborhoods/communities defined both by geography, social-economic status, and demographics.
• Cost-benefit analyses of marijuana legalization/decriminalization policies and the various budgetary impacts resulting from reforms such as law enforcement savings versus treatment costs.

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

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

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

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

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

Reconsidering Federal Marijuana Regulation by Paul J. Larkin Jr.

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

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

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

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

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

Congressional Budget Office estimates bill to end federal marijuana prohibition would reduce federal prison time "by 73,000 person-years, among existing and future inmates"

As noted in this prior post, late last week a high-profile federal marijunana reform bill with provisions seeking to redress the harms of the drug war, the MORE Act, was passed by the US House of Representative.  An accounting of the possible fiscal impact of the bill (which is H.R. 3884) was released here by the Congressional Budget Office (CBO), and sentencing fans might find these calculations especially interesting:

H.R. 3884 would federally decriminalize cannabis (marijuana), expunge the records of people convicted of federal cannabis offenses, and require resentencing of some federal prisoners.  As a result, CBO estimates, thousands of current inmates would be released earlier than under current law.  In the future, decriminalization also would reduce the number of people in federal prisons and the amount of time federal inmates serve.  In total, over the 2021-2030 period, CBO estimates that H.R. 3884 would reduce time served by 73,000 person-years, among existing and future inmates. CBO's analysis accounts for time served by offenders convicted of cannabis-only crimes and by those convicted of another crime in addition to a cannabis offense.

Federal prisoners generally are not eligible for federal benefit programs.  By reducing the prison population, CBO estimates, H.R. 3884 would increase the number of federal beneficiaries, compared with current law, and thus increase direct spending for federal benefit programs by $636 million over the 2021-2030 period.

Exciting times for marijuana reform with some highlights from Marijuana Law, Policy & Reform

A high-profile federal marijunana reform bill with provisions seeking to redress the harms of the drug war, the MORE Act, was passed by the US House of Representative today.  Because the bill has no chance to move forward in the Senate as of now, I am disinclined to blog at great length about the particulars of this bill.  But I am inclined to use this moment as an excuse to highlight some posts of note on this topic and others from my blogging at Marijuana Law, Policy & Reform: 

• MORE Act passed by US House, but party-line vote suggests uncertain future for federal reform

• Rounding up a few headlines just before historic vote on MORE Act to end federal marijuana prohibition

• How many House Republicans are going to vote in support of the MORE Act?

• Highlighting again DEPC call for proposals for new Marijuana Research Grants Program

• United Nations reclassifies cannabis as less dangerous

• "Preventing Industry Abuse of Cannabis Equity Program"

• Diving into Oklahoma's experience as "Hottest Weed Market"

• Might Prez Trump soon give federal marijuana prisoners something to be thankful for?

• "Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action"

• Might Donald Trump have won a second term by championing marijuana reform?

Terrific coverage at CCRC as "Marijuana expungement accelerates across the country"

Long-time readers here and at my other blog know I have long been interested in how marijuana reform can advance criminal justice reform.  My 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," called for much greater efforts to ensure marijuana reforms advance criminal record expungement efforts.  Happily, my 2018 article now already feels a bit dated because there has recently been a much greater emphasis on record relief in many marijuana reforms proposed and passed over the last couple of years. 

These recent realities have been effectively documented at the Collateral Consequences Resource Center.  CCRC Deputy Director David Schlussel first highlighted these developments in March 2020, via this posting and resource under the title "Legalizing marijuana and expunging records across the country."  That detailed posting began this way:  "As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda."  Wonderfully, this new follow-up posting provides the lastest detailed post-election accounting and gets started this way:

In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions.  During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.

As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March.  Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.

Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief.  Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.

With these developments, we have again updated our chart providing a 50-state snapshot of:

(1) laws legalizing and decriminalizing marijuana;

(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and

(3) pardon programs specific to marijuana offenses.

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

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

• From Marketplace, "The war on drugs lost this election. Now what?"

• From Stat, "Decriminalization could help ease the nation’s drug epidemic, but the devil is in the details"

• From WBUR, "Why Voters Are Rejecting The War On Drugs" 

• From The Hill, "50 years after the start of the war on drugs, Americans have a chance to fix the harm it created"

• From NBC News, "2020 election results prove America's war on drugs is finally ending"

• From KATU, "Oregon's drug decriminalization vote gets national attention, praise, scrutiny"

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

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

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

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

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

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

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

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

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

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

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

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

Pondering marijuana reform echoes after another historic election cycle

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

• Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020

• After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?

• What a difference a decade makes: recalling marijuana reform efforts in 2010 California and now in 2020 South Dakota

• Noticing how marijuana reform contributes to regulator diversity even with much equity work ahead

• In what states (and how quickly) might we now see marijuana reform through the traditional legislative process?

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

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

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

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

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

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

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

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

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

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

• Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020

• After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?

Some places to watch for results on criminal justice ballot initiatives

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

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

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

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

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

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

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

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

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

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

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

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

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

Some National Perspectives:

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

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

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

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

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

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

 

Some State Specifics:

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

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

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

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

"Drug Reforms on the 2020 Ballot"

The title of this post is the title of this great new web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  Here is introduction to the detailed state-by-state materials:

A closer look at drug policy reform decisions voters will make during the 2020 election

On election day 2020, voters will decide more than the next United States President. Drug policy and enforcement reforms will appear on numerous state-level ballots. Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market. And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.

To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020. Read on for a list of initiatives we will be watching this November in the areas of marijuana legalization, psychedelics, and criminal justice.

Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

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

It has been far too long since I thought to do a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, though that is certainly not because there has been any shortage of interesting COVID-19 or social justice issues arising these days at the intersection of marijuana policy and criminal justice policy.   Rather than try to do a comprehensive review, I will be content to stoplight some favorites with an emphasis on criminal-justice-related stories in this abridged list of posts of note from recent months at MLP&R:

• Is marijuana reform really a "Superweapon Biden Refuses to Use"?

• Reviewing direct democracy marijuana/drug reform initiatives as we celebrate America's birthday

• "Struggling Through the Pandemic: Cannabis Social Equity During Covid-19"

• "Understanding Social Equity"

• Is it growing clearer that marijuana reform is criminal justice reform and racial justice imperative ?

• "Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform"

• Timely reminders that marijuana reform is criminal justice reform ... especially when Black Lives Matter

• Noticing how marijuana reform now intersects with religious leaders

• "What’s the best minimum legal age for cannabis?"

• Nevada Gov announces plan to secure pardons for "tens of thousands of Nevadans previously convicted for possession of small amounts of marijuana"

• Notable new research and commentary on marijuana reforms and traffic fatalities

• "Why Marijuana Legalization Funds The Police"

• New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)

• Is anyone closely tracking state or national marijuana arrest data during this coronavirus era?  

• "Weeding Out Injustice: Amnesty for Pot Offenders"

• Terrific coverage at CCRC on "Legalizing marijuana and expunging records across the country"

• "States with recreational marijuana laws view the legislation as a success"

• In a post-COVID economy, will job creation and tax revenue from marijuana reform become irresistible?

"A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform"

The title of this post is the title of this big new ACLU report spotlighting the persistent problem with racially skewed marijuana enforcement patterns.  This press release reviews the basics of a 100+ page report that I am looking forward to reviewing in depth:

The American Civil Liberties Union today released a new report showing that Black people are 3.64 times more likely than white people to be arrested for marijuana possession despite comparable marijuana usage rates. Additionally, although the total number of people arrested for marijuana possession has decreased in the past decade, law enforcement still made 6.1 million such arrests over that period, and the racial disparities in arrest rates remain in every state.

The report, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, details marijuana possession arrests from 2010 to 2018, and updates our unprecedented national report published in 2013, The War on Marijuana in Black and White. The disturbing findings of this new research show that despite several states having reformed marijuana policy over the last decade, far too much has remained unchanged when it comes to racial disparities in arrests.

Key findings include:

• Law enforcement made more than 6.1 million marijuana-related arrests form 2010-2018. In 2018 alone, there were almost 700,000 marijuana arrests, which accounted for more than 43 percent of all drug arrests. In 2018, law enforcement made more marijuana arrests than for all violent crimes combined.
• Despite legalization in a number of states, it is not clear that marijuana arrests are trending downward nationally. Arrest rates have actually risen in the past few years, with almost 100,000 more arrests in 2018 than 2015.
• In every state, and in over 96 percent of the counties examined, Black people were much more likely to be arrested than white people for marijuana possession. Overall, these disparities have not improved. On average, a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates. In 10 states, Blacks were more than five times more likely to be arrested.
• In states that legalized marijuana, arrest rates decreased after legalization, however racial disparities still remained.

A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform comes at a time when the criminal legal system is overwhelmed by the public health crisis presented by COVID-19 that demands expedited decarcercal action to safeguard the lives of those incarcerated in and employed by jails and prisons. The reforms recommended in this report provide a roadmap for reducing marijuana arrests and criminalization as governors, prosecutors, judges, and other stakeholders across the country grapple with the harms presented by the public health crisis and take steps to release people from jails and prisons.

“Many state and local governments across the country continue to aggressively enforce marijuana laws, disproportionately targeting Black communities,” said Ezekiel Edwards, director of the Criminal Law Reform Project at the ACLU and one of the primary authors of the report. “Criminalizing people who use marijuana needlessly entangles hundreds of thousands of people in the criminal legal system every year at a tremendous individual and societal cost. As a matter of racial justice and sound public health policy, every state in the country must legalize marijuana with racial equity at the foundation of such reform.”

To combat the racial disparities rampant in marijuana-related arrests, the ACLU is calling not only for an end to racialized policing, but also for full legalization of marijuana use and possession and specific measures to ensure legalization efforts are grounded in racial justice. This includes pressing for passage of the MORE Act, which  aims to correct historical injustices of the failed War on Drugs that has terrorized Black communities by decriminalizing marijuana at the federal level, reassessing marijuana convictions, and investment in economically disadvantaged communities.

Dispensary owner gets (within-guideline?!) federal prison term of 15+ years for marijuana sales that could be legal under most state laws

The headlined of this local article from Michigan, "Michigan medical marijuana seller gets prison: ‘Federal law has not changed,’ judge says," does not fully capture all the notable elements of a federal sentencing for marijuana sales yesterday.  Here are the details via the press article:

The former owner of medical-marijuana dispensaries in several Michigan cities was sentenced Tuesday, Jan. 28, to nearly 16 years in federal prison.  Danny Trevino, 47, of Lansing, who had Hydroworld dispensaries in Grand Rapids, Flint, Jackson, Lansing and elsewhere, had avoided state criminal and civil penalties over the years but was convicted of multiple federal charges.

“States are changing marijuana laws across the country, certainly that’s true, but federal law has not changed,” U.S. District Judge Paul Maloney said.

Trevino sought the statutory minimum sentence of five years in prison. Maloney instead sentenced Trevino to 15 years, eight months in prison - at the low end of advisory sentencing guidelines, which ranged from 188 to 235 months.

The sentence upset several family members and pro-marijuana activists who attended the sentencing in Grand Rapids. “What you saw is a travesty,” Detroit resident Richard Clement said. His shirt read: “#GETNORML,” “#WARONDRUGS” and “CANNACURES.”

He said it was difficult to reconcile what he called a harsh sentence in a state where marijuana is legal. He and others think Trevino was targeted because he is Hispanic. “This was totally racist,” a woman said, leaving the courthouse. “None of the (other dispensaries) ever get raided.” She was with Trevino’s family but refused to give her name....

Trevino, who has operated dispensaries since 2010, was convicted in an August jury trial of 10 felony charges, including conspiracy to manufacture, distribute and possess marijuana and maintaining a drug-involved premises. He was not allowed to use the state’s medical-marijuana law as a defense to the federal charges.

Nonetheless, the government said, he acted outside of the boundaries of the state medical-marijuana law. Defense attorney Nicholas Bostic called that a “fallacy.” He said that Trevino was successful in challenging state complaints after he had been arrested and the subject of several search warrants. He was arrested in April 2014 in Grand Rapids for delivery or manufacture of marijuana and maintaining a drug house but charges were dropped a month later, court records showed.

He fought forfeitures of funds seized by police that were ultimately returned by state courts. Trevino’s businesses were raided 16 times between 2010 and 2016, the government said. He provided the state with store records and tax records that showed his businesses brought in nearly $3 million.

“He thought he was legal,” Bostic told the judge. He said his client, whose previous drug convictions prevented him from being a caregiver, oversaw the operation. He said that every single sale of medical marijuana at his businesses would have been legal under laws in 33 states and the District of Columbia that allow medical or recreational marijuana. Trevino earlier told MLive: "How could I not have been in compliance if I was acquitted and found not guilty. We were winning and they didn’t charge us, so we kept going.”

Assistant U.S. Attorney Daniel McGraw said Trevino knew he acted illegally under federal law. He called Trevino “defiant, unrepentant and undeterred from committing the current federal crimes.” After federal investigators used a search warrant at one of his locations in 2016, Trevino posted on Facebook: “I guess Hydroworld is illegal. Lol OK.”

McGraw said Trevino acted as though marijuana – legalized in 2018 for recreational use in Michigan – was always legal. Trevino was “told time and time again that it was illegal and your honor, he simply didn’t care. He didn’t care. He kept operating," the prosecutor said.

The judge said his concern was Trevino’s conduct under federal law. “I fully recognize that the landscape has changed in many states in this country,” Maloney said. “The fact is, marijuana is a Schedule 1 controlled substance.” He noted that Congress has eliminated the mandatory minimum prison sentence for crack cocaine but has not acted on marijuana.

He said Trevino “had to know he was on the radar screens of federal authorities.” The judge ordered Trevino to serve four years on supervised release once his prison term ends. He also fined Trevino $11,000.

Without seeing more materials from this case, I am adverse to making too many quick judgments about this outcome. But nearly 16 years for quasi-legal marijuana sales seems pretty severe absent a lot more aggravating facts.  This article suggests that the defendant here was a "problem child" under Michigan state law, and so I suppose I can understand why the feds went after him and why the judge decided he merited a significant sentence. But if the defendant possibly believed that he was complying with state law, it seems misguided to sentence him pursuant to federal sentencing guidelines that are based around the “heartland” of a fully illicit drug dealer.

Illinois Gov pardons more than 11,000 people convicted of low-level marijuana crimes

As reported in this local article, "On the day before recreational cannabis becomes legal in Illinois, Gov. J.B. Pritzker announced he was pardoning more than 11,000 people who had been convicted of low-level marijuana crimes." Here is more:

“When Illinois’ first adult use cannabis shops open their doors tomorrow, we must all remember that the purpose of this legislation is not to immediately make cannabis widely available or to maximize product on the shelves, that’s not the main purpose, that will come with time,” Pritzker said to a crowd at Trinity United Church of Christ on the Far South Side. “But instead the defining purpose of legalization is to maximize equity for generations to come.”

Pritzker, who has touted the social equity elements of the recreational pot law he signed this summer, was joined Tuesday by state, county and local leaders including Cook County State’s Attorney Kim Foxx, who has already begun the process of clearing the records of those with low-level marijuana convictions in her jurisdiction.

The 11,017 people pardoned by Pritzker will receive notification about their cases, all of which are from outside Cook County, by mail. The pardon means convictions involving less than 30 grams of marijuana will be automatically expunged.

Pritzker and other elected officials said they believe Illinois is the first state to include a process for those previously convicted of marijuana offenses to seek relief upon legalization of cannabis. “This is justice,” said Lt. Gov. Juliana Stratton. “And this is what equity is all about, righting wrongs and leveling the playing field.”...

Officials estimate there are hundreds of thousands of people with marijuana-related convictions in Illinois who could be eligible for relief. Those with criminal convictions can get a copy of their criminal record and start the process, though many of the cases will be automatically expunged by the state in the next couple of years.

The Illinois State Police are searching criminal records to identify eligible cases, which are then sent to the state’s Prisoner Review Board. After the board reviews the cases, the names of those eligible for relief are sent to the governor’s office to be considered for pardon. After Pritzker issues the pardon, the attorney general’s office automatically files petitions on the person’s behalf to expunge the records.

State’s attorney offices across the state are also being notified of eligible cases, which can then be vacated by a local judge. In Cook County, prosecutors are working with California-based Code for America to search for convictions involving less than 30 grams of cannabis. Those cases have resulted in both misdemeanor and Class 4 felony convictions....

Individuals with cases involving 30 to 500 grams of cannabis can also be eligible for relief, but the process won’t be automatic, instead requiring the person to file motions to vacate the conviction, according to the governor’s office.

While a pardon forgives a conviction, an expungement erases it from the public record. When a judge vacates a conviction, it overturns it as if it never happened. When a case is expunged, the case is hidden from public view, but it could be viewed by law enforcement if they obtained a court order.

Many of the elected officials noted that enforcement of marijuana-related offenses have disproportionately affected minorities. The Rev. Michael Pfleger, of St. Sabina Church on the South Side, said the elected officials on the stage had done their job, but it would be up to business leaders in the new industry to provide financial mobility for those individuals. “Employ these individuals," Pfleger said to the crowd. “Give them a job.”

Ald. Walter Burnett Jr., of the 27th Ward, noted that a pardon for an armed robbery conviction decades ago changed his life and allowed him to serve in public office. He invoked Martin Luther King Jr.'s words to describe how he felt when his record was expunged and how others might feel when they hear news of the pardons. “Free at last,” Burnett said. “Free at last. Thank God almighty, they are free at last.”

Cross-posted at Marijuana Law, Policy and Reform.