Monday, December 12, 2022

Last chance to register for "President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Bac4c356-7915-4767-bd62-7e39643a3eb3Though I have previously flagged this event, I wanted to be sure to highlight again this exciting webinar scheduled for tomorrow (December 13 starting at 12noon).  This event has been organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project.  Here, again, is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

December 12, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Friday, December 02, 2022

Sobering numbers from "mass" marijuana pardon efforts in Pennsylvania

In this post over at my marijuana blog a few months ago, I flagged the announcement of outgoing Pennsylvania Gov Tom Wolf to create a large-scale project, called the Pennsylvania Marijuana Pardon Project, to enable people with certain low-level convictions to submit an application online for an official pardon from the state.  Subsequent reports about this effort noted that many thousands of people had submitted pardon applications.  But this new local article, headlined "Thousands applied, but fewer than 250 qualified for Wolf’s marijuana pardon," spotlights how the devil is often in the details in this arena:

When announcing the marijuana pardon project earlier this year, Gov. Tom Wolf said it had the potential to help thousands of Pennsylvanians clear their records. But it has fallen well short of that goal. More than 3,500 people applied for the program, aimed at wiping out low-level marijuana convictions in a one-time mass act of clemency. Fewer than 250, however, will have an opportunity to clear their record later this month.

On Thursday, the Pennsylvania Board of Pardons voted whether to move forward on more than 2,600 applications from the project. Of those, 231 were approved and will go for a final vote by the board on December 16. Any of the cases that make it through that round, will go on to Wolf to grant the pardon. Another 2,002 applications were denied Thursday because they did not meet the requirements of the project and 434 were held under advisement, meaning the board can vote on them at a later date.

The program only applied to people who were convicted of possession of a small amount of marijuana and excluded anyone who had any additional criminal convictions on their record. Advocates said the narrowness of the program was a significant concern for how effective the program could be.

“Often cannabis consumers get multiple convictions when they are arrested that first time,” said Chris Goldstein, NORML’s Pennsylvania, New Jersey and Delaware regional organizer. “They get a paraphernalia charge, and they get a possession charge all at once. You would have to essentially lead a police-free life other than that one marijuana encounter to qualify.”

Goldstein said the fact that program had a very short window for people to apply also likely limited its impact. Wolf announced the program on September 1 and people had until September 30 to apply....

Goldstein said more than 13,000 people were arrested for possession of a small amount of marijuana in 2021. About 10 percent of those people wind up with a conviction for the offense. Most others are either dismissed or plead out to a lower level crime.

More than 1,150 people were sentenced in 2018 with possession of a small amount of marijuana as the highest charge in their case, according to the latest year of data available from the Pennsylvania Sentencing Commission.

While Goldstein said he was disappointed that only a fraction of the people affected will receive a pardon through the program, clemency for those people will mean less barriers to housing, employment and hopefully improve their lives. “I’m sure to the 231 people who went through this process, got approved, do qualify, when they get the pardon certificate in their hands, it will matter in their lives,” he said. “They had a reason they wanted this pardon. Whether they wanted it for their own person justice, to clear their own name, or they needed it as answer to their record, those pardons will matter.”

December 2, 2022 in Clemency and Pardons, Data on sentencing, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 22, 2022

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.

November 22, 2022 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, November 17, 2022

"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.

November 17, 2022 in Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues | Permalink | Comments (5)

Monday, November 14, 2022

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Bac4c356-7915-4767-bd62-7e39643a3eb3The title of this post is the title of this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project. Here is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

More details and a simple registation form can be found at this link

November 14, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2)

Monday, October 24, 2022

Prez Biden suggests disinterest in broader marijuana clemency as activists protest on behalf of pot prisoners

This new Marijuana Moment piece, headlined "Biden Has No Intention Of Extending Marijuana Pardons To Help People Jailed For Selling It, He Suggests," reports on new comments from the President about his recent clemency activity.  Here is how it starts:

President Joe Biden on Friday again touted his recent marijuana pardons proclamation, but indicated that he has no intention of granting relief to people who are in prison for selling cannabis.  “I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,” he said. “None. And the records, which hold up people from being able to get jobs and the like, should be totally expunged. Totally expunged.”

“You can’t sell it,” the president added. “But if it’s just use, you’re completely free.”

The comments come as activists are planning a protest including civil disobedience at the White House for Monday aimed at calling attention to those who are left behind by Biden’s existing cannabis clemency action.

It’s not clear if the president’s latest remarks simply describe the scope of his current marijuana pardons, which came alongside a separate move to review the drug’s current scheduling status under federal law, or if they are an indication he is ruling out broadening the scope of clemency relief in the future.

The latter scenario would be a great disappointment to the advocates behind the planned White House protest. Those groups, including Students for Sensible Drug Policy, Last Prisoner Project, DCMJ and others, sent a letter to Biden this month, calling his moves to date “a great first step” but saying they “did nothing to address the thousands of federal cannabis prisoners currently incarcerated.”

This extended Washington Post piece, headlined "Sentenced to 40 years, Biden’s marijuana pardons left him behind," discusses the planned protest and the prisoners who are the focal point for additional clemency advocacy:

Protesters are expected to gather outside the White House on Monday to advocate for people ... incarcerated for what they would consider nonviolent offenses that involve marijuana, especially as public perception of the substance has shifted.  Cannabis is now legal for recreational adult use in Washington, D.C., two territories and 19 states.  It is on the ballot in five more states next month.

For those hoping to see marijuana law and policy reforms untangle the legacy of the country’s war on drugs, Biden’s announcement this month that he’d pardon people convicted of federal simple possession did not go far enough. And meaningful post-conviction reform still remains largely elusive in an America that echoed with promises to scrutinize criminal justice following the murder of George Floyd.

The Last Prisoner Project, a nonprofit working on cannabis criminal justice reform that lobbied the White House on this issue, has estimated that there are roughly 2,800 people in federal prison due to marijuana-related convictions, a statistic the organization said stems from a 2021 report from Recidiviz, a nonprofit that uses technology and data to build tools for criminal justice reform....

The first step in ending the war on drugs — which has disproportionally affected Black and Brown communities — is releasing people who have been incarcerated for nonviolent marijuana offenses, said Jason Ortiz, executive director of Students for Sensible Drug Policy.

Offenses like cultivation, distribution and conspiracy, Ortiz said, are the same actions major companies are able to commercialize and profit from today. “There are multibillion dollar companies that sell thousands and thousands of pounds of cannabis a year and operate in multiple states. So if we’re going to allow for that type of commerce to happen, everyone in prison who did anything even remotely close to that should be immediately let out.”

I think it notable and worth noting that we actually have no clear accounting of how many persons may still be serving federal prison terms for "nonviolent marijuana offenses."  This recent analysis of federal prison data from January 2022 by the US Sentencing Commission suggests the number of imprisoned marijuana trafficking offenders was "only" around 2200 as of the start of this year.  Notably, the federal marijuana prisoner number was around 7500 based on USSC data from just five years ago, but sharp declines in federal marijuana prosecutions (discussed in this article) and COVID-era prison population reductions have had a huge impact on the total number now incarcerated for federal marijuana offenses.

Prior recent related posts:

UPDATE: Here is a new Washington Post piece about the protest headlined "With speeches, stars and a blow-up joint, protesters press Biden on pot."

October 24, 2022 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 09, 2022

Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons

President Joe Biden's marijuana actions on Thursday (basics here and here) were sure to generate a lot of buzz (pun intended?), and it would be impossible here to round up all of the reactions.  So I will be content here to just flag a few pieces that caught my eye:

From the AP, "Racial equity in marijuana pardons requires states’ action"

From Axios, "The politics of Biden's marijuana pardons"

From Fox News, "North Carolina governor pushes to legalize marijuana possession after Biden pardons: 'End this stigma'"

From Law Dork, "Biden's marijuana moves: The good, the bad, and the ugly"

From Marijuana Moment, "Will Governors Issue Marijuana Pardons Following Biden’s Call To Action? Dozens Are Already Weighing In"

From Reason.com, "Biden's Marijuana Reforms Are Long Overdue but Will Have Just a Modest Impact"

From Yahoo! Entertainment, "Bill Maher High-Fives Biden for Marijuana Pardons: Pot-Smokers ‘Do Show Up to Vote’"

October 9, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Thursday, October 06, 2022

A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana

As noted in this prior post, Prez Biden today granted a mass pardon to "all prior Federal offenses of simple possession of marijuana."  This official proclamation, titled "A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana," provides some who and how details:

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to (1) all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation, regardless of whether they have been charged with or prosecuted for this offense on or before the date of this proclamation; and (2) all current United States citizens and lawful permanent residents who have been convicted of the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1); which pardon shall restore to them full political, civil, and other rights. 

My intent by this proclamation is to pardon only the offense of simple possession of marijuana in violation of Federal law or in violation of D.C. Code 48–904.01(d)(1), and not any other offenses related to marijuana or other controlled substances.  No language herein shall be construed to pardon any person for any other offense, including possession of other controlled substances, whether committed prior, subsequent, or contemporaneous to the pardoned offense of simple possession of marijuana.  This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.

Pursuant to this proclamation, the Attorney General, acting through the Pardon Attorney, shall administer and effectuate the issuance of certificates of pardon to eligible applicants who have been charged or convicted for the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1).  The Attorney General, acting through the Pardon Attorney, is directed to develop and announce application procedures for certificates of pardon and to begin accepting applications in accordance with such procedures as soon as reasonably practicable.  The Attorney General, acting through the Pardon Attorney, shall review all properly submitted applications and shall issue certificates of pardon to eligible applicants in due course. 

Helpfully, the Justice Department's Office of the Pardon Attorney has this extended Q&A about the reach of the pardon proclamation, and here are some interesting parts:

Does the proclamation apply to convictions under state law?  

No. President Biden’s proclamation does not pardon convictions under state law, although it does apply to possession of marijuana convictions under the District of Columbia’s criminal code.  

Does the proclamation apply to all types of federal marijuana offenses?  

No. President Biden’s proclamation applies only to simple possession of marijuana offenses. Conspiracy, distribution, possession with intent to distribute, and other charges involving marijuana are not pardoned by the Proclamation.  

Do I qualify for a pardon if I was convicted under 21 U.S.C. § 844 of possessing marijuana and another drug in a single offense?  

No. The proclamation does not apply to persons who were convicted of possessing multiple different controlled substance in the same offense. For example, if you were convicted of possessing marijuana and cocaine in a single offense, you do not qualify for pardon under the terms of President Biden’s proclamation. If you were convicted of one count of simple possession of marijuana and a second count of possession of cocaine, President Biden’s proclamation applies only to the simple possession of marijuana count, not the possession of cocaine count.  

Does the proclamation apply to charges that are currently pending as of October 6, 2022? 

Yes. President Biden’s Proclamation applies if the qualifying offense occurred on or before October 6, 2022, even if a conviction has not been obtained by that date.  

Does the proclamation protect me from being charged with marijuana possession in the future? 

No. The proclamation pardons only those offenses occurring on or before October 6, 2022. It does not have any effect on marijuana possession offenses occurring after October 6, 2022. 

In various press reports, I keep seeing some version of this accounting of the impact from this ABC News piece:

The executive action will benefit 6,500 people with prior federal convictions and thousands of others charged under the District of Columbia's criminal code, according to senior administration officials.  Elaborating on the number of people affected, officials said "there are no individuals currently in federal prison solely for simple possession of marijuana."

I presume that the US Pardon Attorney will keep detailed records of how many people end up acquiring certificates of pardon (though all these people have been pardoned, a certificate just serves as a way to get an official memorialization of that fact).  And I would love to see more details, now or later, about some of the demographics of the estimated population who got these pardons.  Someone has clearly run the numbers, though I suspect any accounting here is a bit of a guess and also lacks as much demographic information as might be really interesting.

UPDATE: Thanks to commentor atomicfrog, I just saw that the US Sentencing Commission has produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  The analysis merely details yearly convictions since 1992 with number of convictions of US citizens and lawful permanent residents.  The data is more than a bit inscrutable in part because there are three charts for which the relationship to each other is unclear and because of a note stating that "2,085 cases were excluded from the three analyses in this report due to missing information relating to citizenship."

Since these data are from the US Sentencing Commission, the data sets used for these analyses ought to have race and gender and age and criminal history information.  Perhaps in time the US Sentencing Commission or the White House will look to provide additional demographic information here.   Also, now seeing that the mid-1990s brought as many as 500 federal marijuana possession convictions per year, I suspect there were at least few thousand more prior relevant convictions not captured in these data but subject to coverage by the mass pardon from Prez Biden.  I am tempted to start saying that it looks like 10,000 or more pardons were actually announced by the President in this initiative.

October 6, 2022 in Clemency and Pardons, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, September 21, 2022

House Judiciary Committee advances a number of federal criminal justice bills

As well reported in this lengthy new Marijuana Moment piece, "Congressional Lawmakers Approve Marijuana Record Sealing And Other Drug Policy Bills In Key Committee," today brought some notable action in the US House of Representatives on some criminal justice matters.  I recommend the full piece, and here are excerpts :

A key House committee has approved a series of criminal justice reform bills—including bipartisan proposals to clear records for prior federal marijuana convictions, provide funding for states that implement systems of automatic expungements and codify retroactive relief for people incarcerated due to on crack-cocaine sentencing disparities.

The House Judiciary Committee, chaired by Rep. Jerrold Nadler (D-NY), advanced the measures, as well as other bills unrelated to drug policy, during a hearing on Wednesday.... Nadler, speaking about a bill to provide funding to states for expungement purposes, stressed that “even just an arrest can present lifetime barriers to obtaining jobs, housing, education and put other opportunities out of reach.”

“Criminal record expungement and sealing is a pathway to employment opportunities for individuals with a criminal record and enable them to participate fully in their communities at a time when many industries continue to face labor shortages,” the chairman said. “These pathways that desperately needed.”

The congressman also voiced support for the federal cannabis record sealing bill, saying it is “critical in helping those with non-violent criminal records to rebuild their lives.” He added that the public is on board with the reform, as well as major employers who’ve endorsed the legislation such as J.P. Morgan Chase and Walmart.

Here’s a rundown of what the committee-approved bills would accomplish:

HR 2864: The “Clean Slate Act” from Rep. Lisa Blunt Rochester (D-DE) would mandate the automatic sealing of criminal records for certain non-violent, federal marijuana convictions. It would also provide relief to people who have been arrested for other offenses that did not result in a conviction....

HR 5651: The “Fresh Start Act” sponsored by Rep. David Trone (D-MD) would provide federal funding to states that create their own systems of automated expungements.  Though it does not specify the types of crimes that would warrant relief, a growing number of states are taking steps to implement systems of automatic expungement for marijuana convictions, and those states would benefit from the new funding....

HR 5455: The “Terry Technical Correction Act” from Rep. Sheila Jackson Lee (D-TX) is responsive to a 2021 U.S. Supreme Court ruling that held that a law reducing the federal crack-cocaine sentencing disparity did not apply retroactively in cases that did not trigger a mandatory minimum sentence.

It would amend the law by clarifying that the 2010 Fair Sentencing Act was intended to provide individuals in those cases with relief, and so any motion that was denied on the basis of a court’s interpretation of eligibility under the statute “shall not be considered a denial after a complete review of the motion on the merits within the meaning of this section.”...

The crack-cocaine sentencing bill from Jackson Lee enjoyed some bipartisan support in the committee, with Ranking Member Jim Jordan (R-OH) speaking in favor of the legislation ahead of the vote. He stressed that it was a necessary reform to align the law with congressional intent.

Republican members generally balked at the state expungements and federal record sealing proposals, however, arguing that they amount to “soft on crime” policies.

September 21, 2022 in Collateral consequences, Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Wednesday, July 27, 2022

Recapping some notable Senate hearings on prisons and pot

Yesterday saw two notable hearing on Capitol Hill on criminal justice concerns, and here is some press coverage providing a partial summary of some of what transpired:

From the AP, "Prisons chief deflects blame for failures, angering senators":

With just days left in his tenure, the embattled director of the federal prison system faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.

Bureau of Prisons Director Michael Carvajal, testifying before the Senate’s Permanent Subcommittee on Investigations, insisted he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.

Carvajal, who resigned in January and is set to be replaced next week by Oregon’s state prison director Colette Peters, blamed the size and structure of the Bureau of Prisons for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the agency’s 122 facilities.

From Courthouse News Service, "Marijuana decriminalization takes center stage at Senate hearing":

[Senator Cory] Booker, chairman of the subcommittee and the only Black senator on the Senate Judiciary Committee, said that the federal criminalization of cannabis has “miserably failed” and has led to a “festering injustice” of selectively enforced drug laws disproportionately targeting Black and brown communities.  Nationally, according to a 2020 report by the ACLU, a Black person is nearly four times more likely to be arrested for possession of marijuana than a white person, despite the fact that marijuana use is equally common among racial groups. “Cannabis laws are unevenly enforced and devastate the lives of those most vulnerable,” Booker said during the Tuesday hearing....

Republican Senator Tom Cotton of Missouri hit out against the legislation, alleging it “would wipe clean the criminal records of illegal alien traffickers.”  “When these criminals trafficked marijuana, they broke the law. Whether some find that law unfashionable or even unfair, what they did was illegal,” Cotton said.

Weldon Angelos, who was sentenced to 55 years in prison for possessing several pounds of marijuana as well as a firearm and was later pardoned by former President Donald Trump, told the committee that expungement is a critical part of the legislation in order to address what he sees as a racially motivated ban on marijuana.  “Each arrest, prosecution, conviction and sentence makes the world a little bit smaller for those bearing the modern scarlet letter,” Angelos said, referring to what it’s like to live with a drug conviction....

Edward Jackson, chief of the Annapolis Police Department, testified in support of the bill, saying “there is nothing inherently violent” about cannabis.  Jackson asserted that decriminalization would both improve community trust in police and allow officers to focus on higher priority and violent crimes.  “I have spent far too much time arresting people for selling and possessing cannabis,” Jackson said.

July 27, 2022 in Pot Prohibition Issues, Prisons and prisoners, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, July 25, 2022

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.

July 25, 2022 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Tuesday, July 19, 2022

Might Prez Biden wisely focus on marijuana offenders for his next clemency efforts?

It has now been almost a full three months since, as noted here, Prez Biden in April 2022 made his first and only use of his historic clemency powers.   Though I was disappointed that it took Prez Biden 15+ months in office before using his clemency pen, I was hopeful the large number of grants (three pardons and 75 commutations) might be a sign of things to come.  But now, three months later, I am fearful that Prez Biden will continue to fail to live up to his campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."

Still, as the question in the title of this post is meant to suggest, there would seem to be a unique opportunity for Prez Biden to focus clemency efforts on a particular group of individuals convicted of "non-violent and drug crimes," namely marijuana offenders.  This group is on my mind in part because of this recent press release which highlights the "the ongoing collaboration between The Weldon Project, National Cannabis Roundtable and other partners to secure clemency for individuals convicted on federal marijuana offenses."  Here is the start of the release:

The Weldon Project’s MISSION [GREEN] and The National Cannabis Roundtable (NCR) today announced the launch of the Cannabis Clemency Campaign, an initiative that will encourage the Biden Administration and Congress to advance policies that would grant clemency to qualifying individuals who have been convicted on federal cannabis charges. The campaign will also facilitate collaboration with marijuana clemency experts and academics, kicking off with a marijuana clemency symposium in Washington, D.C. on July 20th.

“Through clemency, President Biden has an opportunity to deliver justice for the thousands of Americans who have been impacted by federal cannabis prohibition and punitive sentencing practices,” said Weldon Angelos, President and co-founder of The Weldon Project. “This would fulfill one of President Biden’s campaign pledges and send a powerful message about this Administration’s dedication to criminal justice reform. I’m proud to formally launch this campaign alongside the National Cannabis Roundtable, and look forward to working together to redress the harm done by federal marijuana prohibition.”

I have the great honor of participating in the symposium mentioned in this release, and I am hopeful that it will help Prez Biden come to see that it is never too late and always the right time for sound use of his clemency powers. 

A few on many prior related posts:

July 19, 2022 in Clemency and Pardons, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, June 20, 2022

Mississippi Supreme Court upholds, against Eighth Amendment challenge, mandatory LWOP habitual-offender sentence for marijuana possession

Last year in this post, I reported on a Mississippi state intermediate appeal court ruling that upheld a mandatory life without parole sentence for possession of over 30 grams of marijuana because the defendant was a violent habitual offender under Mississippi law.  Last week, the Supreme Court of Mississippi, by a 6-3 vote, affirmed this sentence in Russell v. Mississippi, No. 2019-CT-01670-SCT (Miss. June 16, 2022) (available here).  Here is the start and some concluding parts of the  majority opinion:

This certiorari case considers whether Allen Russell’s life sentence without the possibility of parole for possession of marijuana, as an habitual offender under Mississippi Code Section 99-19-83 (Rev. 2020), violates his Eighth Amendment right to be free from cruel and unusual punishment. The Court of Appeals stalemated five to five, resulting in an affirmance of the judgment of the trial court. Russell v. State, No. 2019-KA-01670-COA, 2021 WL 1884144, at *3 (Miss. Ct. App. May 11, 2021).  We affirm Russell’s sentence....

In the limited scenario in which the mandatory sentence facing a defendant under Section 99-19-83 is life without parole and the crime for which the defendant is being sentenced, unenhanced, is a nonviolent crime that carries a minimal-maximum sentence (i.e. less than ten years), trial judges should specifically consider “all matters relevant to” the sentence as contemplated in Presley to determine the issue of gross disproportionality and the constitutionality of the sentence as to that particular defendant. Presley, 474 So. 2d at 620....  None of this benefits Russell. We reiterate, once again, that the burden is upon the defendant to show that the sentence mandated by the legislature is unconstitutional as to that particular defendant.  Because Russell presented no evidence, the only substantive evidence before the court were the prior convictions....

The record is replete with additional evidence, as documented in the separate opinion of the chief justice.  We would refer the reader to the chief justice’s separate opinion for a thorough recounting of the details surrounding Russell’s arrest.  However, it is pertinent to note that the arrest came while law enforcement was attempting to serve another drug related warrant on Russell as well as execute a search warrant on his premises. The search warrant came about as a result of Russell’s being developed as a suspect in a murder in a hotel room where a medical document naming Russell was found....

In Russell’s case, the trial judge followed our procedure and the law, Russell presented no evidence related to the Solem factors and the trial judge sentenced Russell to the only sentence available.  Therefore, we affirm.

The lengthy separate concurring opinion is an interesting read that seeks to highlight "Solem’s weaknesses." Here is how it concludes:

Based on both this Court’s precedent and the rulings of the United States Supreme Court in Rummel, 445 U.S. 263, Harmelin, 501 U.S. 263, Andrade, 538 U.S. 63, and Ewing, 538 U.S. 11, Russell’s sentence as an habitual offender was not grossly disproportionate.  His sentence meets the prescribed statutory punishment.  There is no legal basis to vacate Russell’s sentence.  It is neither cruel nor unusual.  As Russell has failed to prove that the threshold requirement of gross disproportionality was offered and met, because his sentence fell within the statutory requirement, and because his sentence is a constitutionally permissible sentence, we should affirm Russell’s conviction and sentence.

The short dissenting opinion includes this point in making the case Solem ought to help Russell:

Recent developments in Mississippi and elsewhere concerning the treatment of marijuana possession arguably provide a material difference between Solem and Russell that favors Russell as to the objective factors.  In the past year, the state of Mississippi joined many of its sister states in adopting a medical marijuana program.  Pursuant to the bill creating the program, the difference going forward between going to jail for possessing 2.5 ounces of marijuana and owning it legally would be a prescription.  See S.B. 2095, 2022 Miss. Laws.  For better or for worse, the adoption of a medical marijuana in Mississippi is in keeping with a nationwide change on the treatment of marijuana in the law.  An April 2021 law journal article points out that thirty-six states now have medical marijuana programs, and fourteen states and the District of Columbia now allow its recreational use.  Paul J. Larkin, Jr., Cannabis Capitalism, 69 Buff. L. Rev. 215, 216-217 (2021).  Less than thirty years ago, however, all states and the federal government outlawed its distribution. Id. Whether it be wisdom or folly, the above-described move toward decriminalizing the use of marijuana considered in light of the first objective Solem factor, i.e., the gravity of the offense and the harshness of the penalty, surely weighs in favor of Russell.  There appears to be no similar widespread movement to legalize “uttering a ‘no account’ check[.]” Solem, 463 U.S. at 281.

June 20, 2022 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, June 14, 2022

Could the EQUAL Act get passed as part of some kind of "omnibus" federal marijuana reform bill?

The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes."  Here are some of the intriguing particulars from an extended piece worth reading in full:

Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.

The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say.  That said, no deal is set in stone and talks are ongoing.

In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....

Interestingly enough, a non-marijuana item might also be part of the deal in the works: the EQUAL Act to end the federal sentencing disparity between crack and powder cocaine, which experts say has exacerbated racial disparities in the criminal justice system. That legislation has passed the House in standalone form and has substantial bipartisan support in the Senate. “These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”

Given that I am not especially bullish on the likelihood that significant marijuana reform making it through the current Congress, I am not especially keen on the idea of tethering crack sentencing reform to marijuana reform.  But, given that the EQUAL Act seems to be stalled in the Senate (despite more than 10 GOP co-sponsors), maybe this new marijuana talk is good news for the prospects of sentencing reform.  Notably, this recent Hill commentary by Marc Levin, headlined "Bipartisan drug sentencing reform isn’t a pipe dream," argues that the EQUAL Act could still "receive a rare bipartisan embrace."  Whether with a side of weed or on its own, I sure hope the EQUAL Act gets to the desk of the President as soon as possible.

A few of many prior posts on the EQUAL Act:

June 14, 2022 in Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (13)

Wednesday, April 20, 2022

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:

April 20, 2022 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Tuesday, April 19, 2022

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:

April 19, 2022 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, December 31, 2021

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:

December 31, 2021 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

Sunday, December 05, 2021

Recidiviz forecasts federal marijuana legalization would reduce "federal prison population by 2,807 over 5 years"

Recidiviz has this notable new data analysis titled "Ending Federal Prison Sentences for Marijuana Offenses."  Here is part of its text:

Ending federal marijuana prohibition specifically, ceasing federal prison commitments for marijuana-related offenses could reduce incarceration costs by $571.8M and the federal prison population by 2,807 over 5 years. The policy is also projected to divert roughly 1,120 people from being sent to federal prison each year....

In spite of these shifts in public opinion and state law, marijuana is still prohibited at the federal level, and more than 3,000 individuals are currently serving marijuana-related sentences in federal prison.  Significant racial disparities exist in federal marijuana sentencing; an estimated 60% of people serving time in federal prison for marijuana offenses are of Hispanic descent, and over the past five years, 67% of individuals receiving prison sentences for marijuana offenses were Hispanic.


While the rate of prison sentencing for federal marijuana offenses has declined substantially in the past five years, individuals incarcerated for federal marijuana offenses still face an average sentence of approximately 38 months.  Furthermore, nearly 1 in 4 individuals incarcerated under federal marijuana trafficking offenses will face
reincarceration.

December 5, 2021 in Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners | Permalink | Comments (0)

Sunday, November 21, 2021

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:

November 21, 2021 in Data on sentencing, Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Tuesday, October 19, 2021

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:

October 19, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Thursday, October 07, 2021

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." 

October 7, 2021 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Tuesday, September 14, 2021

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 SandersAl 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."

September 14, 2021 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 14, 2021

What legally distinguishes a "non-violent Federal cannabis offense" from a violent one (and would multiple SCOTUS rulings be needed to sort this out)?

Legal Marijuana Oregon Measure 91The question in the title of this post is prompted by key language in the resentencing and expungement provision of the "discussion draft" of Senate Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this CAO "discussion draft" is available here; this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy (see coverage here at MLP&R).  Of course, I am distinctly interested in the criminal justice provisions of this bill, and I was excited to see there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT."  But the CAOA bill draft includes a notable (and I think problematic) linguistic limit on the reach of resentencing and expungement.

Specifically, the main expungement provision of the CAOA calls for automatic expungement of only a "non-violent Federal cannabis offense."  CAO sec. 311(a)(1) (emphasis added).  Similarly, the provision allowing for "sentencing review" states:

For any individual who is under a criminal justice sentence for a non-violent Federal cannabis offense, the court that imposed the sentence shall, on motion of the individual, the Director of the Bureau of Prisons, the attorney for the Government, or the court, conduct a sentencing review hearing.  If the individual is indigent, counsel shall be appointed to represent the individual in any sentencing review proceedings under this subsection.

CAO sec. 311(b)(1) (emphasis added).  I really like the provision requiring the appointment of counsel for these "sentencing review proceedings."  But I wonder and worry that, if this provision were to become law, counsel might be spending way too much time just figuring out whether prospective clients qualify as "non-violent" federal cannabis offenders. 

Though we all often use terms like violent and non-violent as offense descriptors, federal criminal justice practitioners know all too well that there is never-ending litigation in the context of many other federal statutes and provisions concerning whether certain prior offenses qualify as "violent" or not.  (Frustrated by just one small piece of this litigation, I joked in this post that one of the circles of hell set forth in Dante's Inferno surely involved trying to figure out what kinds of past offenses can or cannot be properly labeled "violent.")

Especially troublesome in this context is the realty that, technically, all basic federal drug offenses are "non-violent" because there are not any formal elements of these offenses that require any proof of force or injury.  And yet, more than a few "drug warriors" have been heard to say that all drug crimes are by their very nature violent and that the only types of  drug offenders who get the attention of federal prosecutors are those who have a violent history or violent tendencies.  Consequently, I would expect that federal defense attorneys would have a basis to argue that every  "Federal cannabis offense" qualifies as non-violent, while federal prosecutors would likely contend that at least some (many?) federal cannabis offenders are to be excluded by this "non-violent" limit in the bill text.

I suspect that this section of the Cannabis Administration and Opportunity Act was just drawn from similar language in the House version of proposed federal marijuana reform (section 10 of the MORE Act), and the CAOA's current status as a "discussion draft" should provide an opportunity to clean up this problematic adjective.  Though I understand the political reason for wanting to distinguish less and more serious drug offenders for expungement and resentencing provisions, the "non-violent" terminology seems to me quite legally problematic.  (There are other aspects of the "RESENTENCING AND EXPUNGEMENT" section of this new bill that are far from ideal, but this terminology struck me as the biggest red flag.)

Some related work in this space:

A few of many prior recent related posts:

July 14, 2021 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1)

Monday, July 05, 2021

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:

July 5, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Tuesday, May 18, 2021

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

May 18, 2021 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Wednesday, April 21, 2021

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

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

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

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

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

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

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

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

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

Tuesday, April 13, 2021

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" 

April 13, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (0)

Monday, March 22, 2021

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

March 22, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences | Permalink | Comments (0)

Thursday, March 11, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 25, 2021

"Merrick Garland, cannabis policy, and restorative justice"

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

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

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

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

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

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

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

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

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

Thursday, January 21, 2021

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:

January 21, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Sunday, December 20, 2020

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

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

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

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

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

Reconsidering Federal Marijuana Regulation by Paul J. Larkin Jr.

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

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

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

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

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

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

Monday, December 07, 2020

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.

December 7, 2020 in Marijuana Legalization in the States, Pot Prohibition Issues, Prisons and prisoners | Permalink | Comments (0)

Friday, December 04, 2020

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

December 4, 2020 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Saturday, November 21, 2020

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.

November 21, 2020 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision | Permalink | Comments (0)

Tuesday, November 10, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 08, 2020

Pondering marijuana reform echoes after another historic election cycle

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

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

Wednesday, November 04, 2020

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

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

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

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

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

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

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

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

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

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

November 4, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Saturday, September 12, 2020

A timely reminder that the war on drugs, and even the war on marijuana, is not anywhere close to over

Just last night I flagged here a new article by Michael Vitiello about the "war on drugs" and extreme sentences for drug crimes.  And this morning I saw this news article from Kansas this past week that provides a reminder that the US drug war as operationalized through extreme sentences even for marijuana offenses remains a very current reality for far too many.  The piece is headlined "Man serving 7.5 years on marijuana case says Kansas’ sentencing laws aren’t just," and here are excerpts:

A man sentenced to more than seven years in prison on a marijuana case wants Kansas Gov. Laura Kelly to consider his request for clemency and to see the state change its drug penalty laws.  Donte Westmoreland, 25, had no prior convictions when he was found guilty of possession of marijuana with intent to distribute and conspiracy to distribute in May 2017 in Riley County. Judge John Bosch sentenced him to 92 months....

Kansas has a sentencing range guideline intended to promote uniformity in penalties. Bosch gave Westmoreland the lower end of the range.  But Christopher Joseph, Westmoreland’s attorney during sentencing and his appeal, said many judges across the state depart from the guidelines for marijuana cases, instead handing down probation....

According to a motion filed in the case, probation was given in 95% of the marijuana distribution cases in Kansas involving defendants with low criminal history scores.

On March 8, 2016, police observed two vehicles traveling in close proximity to each other. Officers testified that they believed a Hyundai was an escort vehicle for a Lexus. Westmoreland, of Stockton, California, was a passenger in the Hyundai, which was stopped for an obstructed license plate and searched in Geary County.  A small amount of marijuana was found in the trunk, according to court documents.  The Hyundai was released and it continued to an apartment complex in Riley County, where the Lexus met them about 20 minutes later. Officers followed them to the apartment of Jacob Gadwood, where they searched the Lexus and found packages of drugs.

Westmoreland and the driver of the Hyundai were arrested. Three other co-defendants who fled the scene were later taken into custody. Gadwood agreed to become an informant for prosecutors and testified that Westmoreland came to his apartment to sell marijuana. The five defendants in the case faced varying charges related to possessing and distributing marijuana, court records showed.  Sentences ranged from time served to Westmoreland’s 92 months, which was the longest.

In a statement to The Star, Riley County Attorney Barry Wilkerson said Westmoreland went to Manhattan to sell large amounts of marijuana with three others in two vehicles, one of which was a decoy.  “These were sophisticated dealers of narcotics,” Wilkerson said. “One of the vehicles was a Lexus.  92 months was a fair sentence under the circumstances.”

In Kansas, a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter. “The current Kansas law and penalties for marijuana are unjust,” Joseph said. “The law is so out of sync with reality at this point.”

Lauren Bonds, legal director of the ACLU of Kansas, said Kansas is being closed in on.  Recreational marijuana became legal in Colorado in 2014.  Missouri and Oklahoma have passed medicinal marijuana laws and Nebraska has taken steps to decriminalize the drug....

Kansas Sen. Richard Wilborn, R-McPherson, chairs the Judiciary Committee and said sentencing guidelines is one of the topics “in the forefront.” He said he would take any recommendations from the Criminal Justice Reform Commission seriously, but that legislation has to be proportional with other illegal substances and not target a single issue.

Westmoreland said he supports reforms that address racial and sentencing disparities.  Twenty-eight percent of the Kansas Department of Corrections’ population is Black. According to the U.S. Census, Black people make up 6.1% of the state.

Earlier this year, Westmoreland submitted a clemency application to Gov. Laura Kelly’s office. The request included letters of support from Lansing Warden Shannon Meyer, Sen. Randall Hardy, R-Salina, and Rep. John Alcala, D-Topeka....  Kelly’s office is in the process of reviewing the clemency request, spokeswoman Lauren Fitzgerald said.

I fully understand why many advocates for criminal justice reform who are eager to end mass incarceration are now quick to stress that we need to address unduly long sentences for violent crimes.  But I see these kinds of extreme drug sentencing cases and continue to stress that we still need to make a whole lot more progress on reform for so many non-violent crimes, too, while also recognizing that it will be hard to get a place like Kansas to be less harsh in response to violent crimes if state law still provides that "a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter."

Moreover, severe drug war attitudes are ultimately more enduring and perhaps even more problematic than even severe drug war laws.  That the prosecutor here is still eager to assert that such a long sentence for mere distribution of marijuana "was a fair sentence under the circumstances" showcases that many drug warriors are seemingly not inclined to rethink even the most severe weapons used to wage this unwinnable and damaging war. 

September 12, 2020 in Drug Offense Sentencing, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Tuesday, July 07, 2020

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:

July 7, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice, Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (0)

Monday, April 20, 2020

"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 reportA Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reformdetails 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.

April 20, 2020 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, February 25, 2020

"Why prosecutorial discretion must be less discreet for criminal justice"

The title of this post is the headline of this notable recent Hill commentary authored by Lars Trautman. Here are excerpts:

Although the term “prosecutorial discretion” is familiar to most people, the extent to which it influences the direction and outcomes of each case may not be.  Does an offense deserve criminal charges, and if so which charges?  Should an individual receive bail or await trial in a jail cell? Is that trial even necessary, or will a plea deal suffice? Prosecutorial discretion lies at the heart of the answer to these questions and more.

Yet legislators are in an uproar because some prosecutors have started using their discretion to presumptively dismiss or divert all cases involving certain low level offenses. In Indiana, this includes the Marion County prosecutor declining to prosecute cases involving under an ounce of marijuana.  Likely ignorant of the fact that prosecutors routinely get rid of these cases without a conviction anyway, legislators have taken this replacement of individual decisions with an office wide policy as an affront. The result is a push to let no law go unprosecuted.

That is of course impractical. There are simply too many offenses and possible offenders to actually prosecute them all.   This means that some prosecutorial discretion is inevitable.... General policies favoring alternatives to prosecution extend the benefits of this discretion universally in those cases where the consequences of a conviction are counterproductive to the aims of justice.  Such policies also recognize that scarce prosecutorial resources are generally better spent pursuing much more serious conduct. Ignoring marijuana possession to focus on violent crime should not be a controversial call.

But just because the legislature is attempting to solve a fictional problem does not mean very real ones do not exist.  Prosecutorial discretion suffers from unaccountability and lack of transparency that could undermine its potential for good.  It operates as a kind of black box that only prosecutors can see inside as facts go in, decisions come out, and explanations are rarely forthcoming.  Policies are seldom public, and prosecutors do not usually disclose why they reached an outcome in any given case.

This immunity from scrutiny becomes protection against any challenge.  After all, a bad outcome alone is standard fare in our justice system.  Without any information on why it was reached, who is to say it was not the natural and normal result?  But attempting to eliminate prosecutorial discretion does not address any of these issues.  With more than 13 million misdemeanor charges alone filed every year in the country, and annual prosecutorial caseloads exceeding a thousand in some places, the evidence suggests that discretion is probably not used enough.

Instead, legislators should work to verify that prosecutors exercise their discretion fairly.  They can do this by pushing prosecutors to release relevant policies to the public, explain individual decisions, and collect and publish data on these decisions.  Trying to remove discretion from prosecution is sheer folly.  But as a necessary force behind many of the decisions that occur in criminal justice, it should be brought further into the light.  Only then will the public be able to see that it is correcting imbalances and injustices rather than continuing them.

February 25, 2020 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, January 29, 2020

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.

January 29, 2020 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (3)

Tuesday, January 28, 2020

Contesting LWOP in Louisiana for selling a joint thanks to a a "quad bill" and the trial penalty

I just came across this press piece, headlined "Louisiana Supreme Court to review life sentence over $30 marijuana sale at Tulane hearing," on a notable extreme state sentencing case just argued before a state high court. The details are as troubling as headline:

The weight of marijuana in a typical joint is what Derek Harris handed an undercover agent who knocked on his door in Abbeville in 2008.  Harris, a military veteran, handed the agent .69 grams of the drug and pocketed $30 in return.  Four years later, a judge found Harris guilty of marijuana distribution, a Vermilion Parish prosecutor invoked the state’s habitual-offender law, and the judge sentenced Harris to life in prison with no chance at parole as a four-time loser.

Harris’ prior convictions dated back to 1991, 17 years before that minor pot bust, and a conviction for dealing cocaine, according to court filings. He was convicted of simple robbery in 1993 and again in 1994. Three years before the ill-fated marijuana sale, in 2005, Harris was convicted again, on a charge of theft under $500.

If the life sentence seemed to some to be excessive — though 15th Judicial District Judge Durwood Conque claimed he had no choice after prosecutors unleashed a “quad bill” on Harris — his trial attorney skipped some key legal steps to seek a lower one and keep the issue alive for an appeal [and] the Louisiana Supreme Court hear[d] oral arguments over whether it's too late for Harris to claim his lawyer botched his sentencing....

Harris’ attorneys are asking the Supreme Court to upend a 24-year-old decision in which the high court ruled that a challenge to a sentence as being excessive can’t be raised after a defendant’s direct appeals have run out. Harris’ attorneys with the New Orleans-based Promise of Justice Initiative argue that he should be allowed to go back and prove his attorney failed him, in spite of that blanket rule.

District Attorney Keith Stutes’ office argues that the Supreme Court has been clear, and that Harris’ attorneys are barking up the wrong legal tree. Conque, the trial judge, told Harris at his initial sentencing that he didn’t think a 30-year maximum sentence was warranted. Instead, he handed Harris 15 years. But after prosecutors invoked the habitual-offender law, Conque said his hands were tied....

It appears prosecutors initially offered Harris a seven-year sentence, but he wanted three years, and the offers got worse for him from there. Harris has claimed he never got the offer. Stutes' office argues that the number doesn't matter, in the end. Any number would have netted life for Harris under the habitual-offender law, and a decision on whether to invoke that is left solely to the prosecutor's discretion.

Prosecutors outside of the New Orleans area rarely wheel out the habitual-offender law to jack up a prison sentence, state data collected by the Pew Charitable Trusts show. But when they do, it is often to follow through on a pre-trial threat aimed at pushing a defendant to take a guilty plea rather than go to trial.

One of three state 3rd Circuit Court of Appeal jurists on a panel that earlier rejected Harris’ appeal offered a blistering dissent. Judge Sylvia Cooks cited Harris’ service as a veteran of Operation Desert Storm and his drug addiction while calling his life sentence “shocking to my conscience.”  The state’s high court has set a high bar in deciding when a sentence is unconstitutionally severe. It reserves those decisions for punishment that “shocks the conscience“ amounting to “nothing more than the purposeful imposition of pain and suffering grossly disproportionate to the severity of the crime.”

In one notable case, the high court refused to lower a 13-year sentence handed to Bernard Noble, a New Orleans man caught with the equivalent of a few joints of marijuana. The court found that Noble’s case wasn’t shocking enough to overrule the Legislature’s tough sentencing laws at the time. Harris’ sentence, though, means he'll die in prison.

I find it so sad that even with all the positive sentencing reform momentum in recent years, there are still so many of these extreme sentencing stories of LWOP for the most minor of marijuana offenses or, as noted here, 12 years for harmlessly having a cell phone when booked into jail. As I said before, I fear it is still way too routine for way too many judges and prosecutors to be comfortable with sending people off to live in cages for years and decades without deep reflection on just what these sentences really mean for the defendant and what they say about American as a nation. Sigh.

January 28, 2020 in Examples of "over-punishment", Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 31, 2019

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.

December 31, 2019 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 20, 2019

Might we reasonably expect marijuana reform or other criminal justice issues to be engaged in tonight's Dem debate?

There is another Democratic Primary Debate slated for tonight, taking place in Atlanta, and I suspect one would get quite drunk if drinking every time someone says quid pro quo as suggested by Rolling Stone.  What I am not sure of is whether someone would be very drunk or very sober if the drinking word was marijuana.  As the title of this post suggests, there are reasons to think this debate might engage the issues given that former VP Joe Biden was talking about gateway drugs recently, and the Judiciary Committee of the House of Representatives today moved forward the Marijuana Opportunity Reinvestment and Expungement (MORE) Act.   

Of course, you can keep up with marijuana reform action at my Marijuana Law, Policy & Reform blog, and here are some highlights from recent posts over there that should be especially relevant to folks discussing the modern policies and politics of reform:

November 20, 2019 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences | Permalink | Comments (0)

Wednesday, October 23, 2019

Some recent fall classics from Marijuana Law, Policy & Reform

Perhaps because I have been watching a whole lot of baseball this fall, I have not really done a whole lot of blogging over at Marijuana Law, Policy & Reform.  Perhaps unsurprisingly, though, I have often found time to blog particularly on matters at the intersection of marijuana policy and criminal justice policy and so I figured a short round-up of recent posts of note might still be worthwhile:

October 23, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Thursday, September 19, 2019

Prez candidate Beto O'Rourke proposes "Drug War Justice Grants" funding by marijuana tax revenues

As reported in this Hill piece,"President hopeful Beto O'Rourke on Thursday unveiled a plan to legalize marijuana and end the war on drugs." Here are the basics:

The former Texas congressman would grant clemency to those currently serving sentences for marijuana possession, establish a model for marijuana legalization and give grants to those affected by the war on drugs to help them benefit from the new industry.

The “Drug War Justice Grants” would be given to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison. Licenses to produce, distribute, or sell marijuana would be funneled to minority-owned businesses and fees would be waived for low-income individuals who had previously been convicted of related offenses.

“We need to not only end the prohibition on marijuana, but also repair the damage done to the communities of color disproportionately locked up in our criminal justice system or locked out of opportunity because of the War on Drugs,” O'Rourke said in a statement.

This page on the O'Rourke campaign website provides some background and details, and here are excerpts focused on criminal justice matters:

In January 2009, Beto O’Rourke, one of the youngest members of the El Paso City Council, introduced a longshot resolution calling for an “honest, open national debate” on ending the prohibition of marijuana.... To Beto’s surprise, the resolution passed unanimously. But the mayor vetoed the resolution later that day....

In 2011, Beto published the book Dealing Death and Drugs: The Big Business of Dope in the U.S. and Mexico: An Argument for Ending the Prohibition of Marijuana. Long before the legalization of marijuana was overwhelmingly popular with the American public, Beto laid out his case for ending the decades-long prohibition on marijuana and repairing the damage done to the communities of color that are disproportionately impacted....

The War on Drugs has been catastrophic for communities of color, and our policy toward marijuana has been particularly egregious. Despite similar rates of use, African-Americans are almost 4 times more likely to be arrested for marijuana possession than white people. Yet, a 2017 survey of marijuana business owners in states allowing them found that only 19% identified as non-white. These statistics tell the story of marijuana laws in our country, where certain communities have been subjected to over-policing and criminalization while others are being presented lucrative business opportunities. Beto is committed to rewriting this story and rectifying the harm caused by decades of unjust marijuana policy.

As President, Beto will:

Legalize Marijuana...

Use clemency power to release those currently serving sentences for marijuana possession and establish a review board to determine whether others currently serving sentences related to marijuana should be released;

Expunge the records of those who have been convicted for possession and prevent the conviction from precluding these individuals from accessing housing, employment, education, and federal benefits, or from having their driver’s licenses suspended;...

Remove cannabis-related charges as grounds for deportation or denial of citizenship. The Trump Administration has explicitly targeted those with marijuana possession convictions for deportation, even though marijuana has been legalized in 11 states and the District of Columbia.

Invest revenue from the marijuana industry in communities impacted by the War on Drugs through “Drug War Justice Grants” and Equitable Licensing Programs....

To guarantee that opportunities to profit from a regulated marijuana market are made available to communities disproportionately impacted by the War on Drugs, Beto will:

Call for a federal tax on the marijuana industry, revenue from which will be used to:

Provide a monthly “Drug War Justice Grant” to those formerly incarcerated for nonviolent marijuana offenses in state and federal prison for a period based on time served. The grants will be funded completely by the tax on the marijuana industry.

Fund substance use treatment programs.

Support re-entry services for those who have been incarcerated for possession.

Invest in communities disproportionately impacted by marijuana arrests, including investments in housing and employment support, substance use and mental health treatment, peer and recovery support services, life skills training, victims’ services.

Support those disproportionately impacted by marijuana arrests, including those who have been convicted of marijuana possession themselves in participating in the marijuana businesses by providing technical assistance, industry-specific training, access to interest free/low-interest loans, and access to investment financing and legal services.

Ensure those most impacted by the War on Drugs are the ones benefiting from the economic activity related to marijuna.

As President, Beto will tie federal funding for criminal justice systems to requirements that states or local governments:

Waive licensing fees for producing, distributing, or selling marijuana for low-income individuals who have been convicted of marijuana offenses.

September 19, 2019 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, September 12, 2019

Jailed for unpaid fines almost a decade after being imprisoned for years for $31 pot sale

This new Washington Post article reminded me of a name and an ugly case from nearly a decade ago.  As the article explains, the matter has not gotten any less depressing.  The headline provides the essentials: "She got 12 years for $31 of pot. Years after her parole, she was jailed for the unpaid court fees."  Here are the dispiriting details:

Sitting in her jail cell this week, Patricia Spottedcrow couldn’t imagine where she was going to get the money she needed for her release.  In 2010, the young Oklahoma mother, who had been caught selling $31 worth of marijuana to a police informant after financial troubles caused her to lose her home, was sentenced to 12 years in prison.  It was her first-ever offense, and the lengthy sentence drew national attention, sparking a movement that led to her early release.

But once she was home free, Spottedcrow still owed thousands in court fees that she struggled to pay, since her felony conviction made it difficult to find a job.  Notices about overdue payments piled up, with late fees accumulating on top of the original fines.  On Monday, the 34-year-old was arrested on a bench warrant that required her to stay in jail until she could come up with $1,139.90 in overdue fees, which she didn’t have. Nearly a decade after her initial arrest, she was still ensnarled in the criminal justice system, and had no idea when she would see her kids again....

Back in 2011, Spottedcrow became an unwitting poster child for criminal justice reform when the Tulsa World featured her in a series about women incarcerated in Oklahoma. Then 25, she had just entered prison for the first time, and didn’t expect to be reunited with her young children until they were teenagers.

At the time of her arrest, Spottedcrow was unemployed and without a permanent home, the paper reported. She was staying at her mother’s house in the small town of Kingfisher, Okla., when a police informant showed up and bought an $11 bag of marijuana.  Two weeks later, he returned to buy another $20 worth of the drug from Spottedcrow.  Both mother and daughter were charged with distribution of a controlled substance, and, because Spottedcrow’s children were at home when the transaction took place, possession of a dangerous substance in the presence of a minor....

The two women both were offered plea deals that would have netted them only two years in prison, the World reported, but Spottedcrow didn’t want her 50-year-old mother, who has health issues, incarcerated.  Because neither had a prior criminal record and they had sold only a small amount of pot, they took their chances and pleaded guilty without negotiating a sentencing agreement, assuming they would be granted probation.

Instead, the judge sentenced Spottedcrow to 10 years in prison for the distribution charge, plus another two years for possession. Her mother received a 30-year suspended sentence so that she could take care of the children.  Kingfisher County Associate District Judge Susie Pritchett, who retired not long afterward, told the World she thought the sentence was lenient.  The mother-daughter pair had been behind “an extensive operation,” she claimed, adding, “It was a way of life for them.”

Spottedcrow said that wasn’t true.  “I’ve never been in trouble, and this is a real eye-opener,” she told the paper at the start of her prison stint.  “My lifestyle is not like this. I’m not coming back. I’m going to get out of here, be with my kids and live my life.”

After the World’s story published in 2011, supporters rallied around Spottedcrow’s cause, urging officials to reconsider her punishment.  At the time, Oklahoma had the highest per capita rate of female incarceration in the country, a title it continues to hold today.  Advocates contended that lengthy sentences like hers were part of the problem, and questioned whether racial bias could have played a role — Spottedcrow is part Native American and part African American.

That same year, a different judge reviewed Spottedcrow’s sentence and agreed to shave off four years.  Then, in 2012, then-Gov. Mary Fallin (R) approved her parole.  Spottedcrow got home in time to surprise her kids when they stepped off the school bus.  The American Civil Liberties Union described her release as a “bittersweet victory,” noting that serving only two years of a 12-year sentence was highly unusual, but the penalty that she received for a first-time, nonviolent drug offense wasn’t out of the ordinary for Oklahoma.

It also wasn’t the end of her troubles.  In 2017, five years after Spottedcrow was released from prison, Ginnie Graham, a columnist for the World, checked into see how she was doing.  The picture that she painted was dispiriting: Spottedcrow’s growing family was living in a motel off the interstate because having a felony drug conviction on her record made it virtually impossible for her to find housing, and she hadn’t been able to find work, either. “I’ve never had Section 8 or HUD, but I need it now,” she said. “I even called my (Cheyenne and Arapahoe) tribe to help, and they didn’t. I called the shelters, and they don’t take large families.”

That same year, at a forum on criminal justice reform, Spottedcrow explained that she couldn’t go back to working in nursing homes like she had done before her arrest because of her felony conviction.  And in a small town like Kingfisher, every other potential employer already knew about her legal woes....

While Spottedcrow struggled to care for her six children, the Kingfisher County Court Clerk’s Office mailed out more than a dozen notices saying she had fallen behind on her payments.  Each letter meant that the court had tacked on another $10 fine, and that another $80 would be added on top of that if the office didn’t get the money within 10 days.  When Spottedcrow first reported to prison, she owed $2,740 in fines.  After her release, she made payments at least every other month according to the World.  But it barely made an impact on her ballooning debt: When she was arrested this week, she owed $3,569.76....

Spottedcrow’s new arrest on Monday brought renewed attention to her nearly decade-old court case. KFOR morning news anchor Ali Meyer, who detailed the saga in a widely shared Twitter thread, noted that cannabis has been a booming industry in Oklahoma ever since the state legalized medical marijuana in 2018, and left it up to doctors to determine who qualified.

On Tuesday afternoon, Meyer posted the number for the Kingfisher County Court Clerk’s Office, which would allow anyone to make payments on Spottedcrow’s behalf.  By Wednesday, seven anonymous supporters had covered not just the $1,139.90 that she needed to get out of jail, but her entire $3,569.76 outstanding balance, the station reported.

Somewhere, Franz Kafka is smiling.

Prior posts on Spottedcrow's case:

September 12, 2019 in Examples of "over-punishment", Offense Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (2)

Saturday, September 07, 2019

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

It has been quite some time since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, though that is not because there has been any shortage of interesting developments and timely research at the intersection of marijuana policy and criminal justice policy.   So, with a focus on criminal-justice-related stories, here are some of many posts of note from recent months:

September 7, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)