Criminal Justice

  • September 3, 2013
    Guest Post

    by Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, University of Denver Strum College of Law

    The Department of Justice recently announced how it would enforce federal marijuana law in those states seeking to legalize marijuana under their own laws. In a memo to United States Attorneys around the country, Deputy Attorney General James Cole set out the priorities that govern the federal government’s enforcement of the Controlled Substances Act’s (CSA) marijuana prohibition. The government, Cole wrote, was primarily concerned with the distribution of marijuana to minors, the involvement in marijuana trafficking of organized crime, the distribution of more serious drugs along with marijuana, and the transfer of marijuana from states where the drug was legal under state law to those where it was not.  So long as those states seeking to legalize marijuana had robust regulatory regimes in place to address these concerns, businesses acting in conformance with state law would generally not be an appropriate target of federal enforcement, whether criminal or civil.

    The DOJ memo marks a major change in direction for the federal government. As recently as 2010, Attorney General Holder had made clear to the people of California that the federal government would not countenance a state decriminalizing and regulating recreational marijuana manufacture and sale. Furthermore, previous enforcement memoranda from the DOJ had drawn a distinction between legitimate medical use of marijuana on the one hand (which the government stated would not be an enforcement priority) and large-scale commercial production (which remained a valid target for federal prosecution). The 2013 Cole Memo makes clear that the size and for-profit nature of marijuana establishments was but one factor to be considered by United States Attorneys in determining whether to enforce the CSA in states that had sought to legalize marijuana. 

    For state officials in Washington and Colorado – which both passed marijuana legalization initiatives in 2012 – this word from the DOJ was long-overdue good news; with this announcement, the states could complete the final stages of their marijuana regulations and begin licensing businesses to open their doors in early 2014.

    But the memo can do only so much to alleviate the uncertainty and confusion caused by the continuing federal marijuana prohibition. In the first place, the memorandum is a unilateral act of the executive and can always be undone by other unilateral executive actions; when a new presidential administration takes over in January 2017, there is no telling how it will view the federal government’s marijuana enforcement priorities. 

  • August 16, 2013

    U.S. Rep. John Lewis (D-Ga.) during this year’s ACS National Convention spoke a bit about his upbringing in a brutally racist society in rural Alabama. It was as Lewis recounted a time when he found inspiration in the words he heard over the radio from Martin Luther King Jr. and about the actions of Rosa Parks.

    “The action of Rosa Parks, the leadership and words of Dr. King inspired me to get in the way, to get into trouble, good trouble, necessary trouble,” he said at the ACS Convention.

    Lewis, in a New York Times feature, said that 50 years after the March on Washington for Jobs and Freedom, at which Lewis spoke, the nation is still haunted by “our dark past.” This summer alone has provided too many examples of a nation resistant or fatally indifferent to the lives and rights of minorities. Indeed great economic inequalities and blatant inequalities in the criminal justice system are festering, not receding. These inequalities are decimating minority communities from coast to coast.

    At the March on Washington for Jobs and Freedom 50 years ago, Lewis in front of the Lincoln Memorial provided a rousing call for equal opportunity, equality under the law. Today he is still pursuing the cause. At the ACS Convention Lewis presciently anticipated a devastating opinion from the U.S. Supreme Court that gutted the landmark Voting Rights Act. Lewis said, “I have a strange feeling in America, at this point in history, we’re just a little too quiet. We’ve come to a point where we almost want to resign, and say this is just the way it is. But it doesn’t have to be this way. There are still too many people in our society who have been left out and left behind.”

    Starting next week and running through Aug. 28 an array of groups, such as the Leadership Conference on Civil & human Rights, The Urban League, NAACP, AFSCME, AFL-CIO, SEIU, MALDEF, the National Gay and Lesbian Task Force and many others will host events daily commemorating the historic March and talking about the challenges and obstacles to genuine equality and economic justice that remain. A schedule of those events is available at the A. Philip Randolph Institute’s website.

    As Lewis said at the ACS Convention the nation has made strides, but much work remains to be done. Lewis urged the gathering, “Don’t give up, don’t give in, our struggle is one that does not last one day or one week, or one year. It is a struggle of a life time, or many life times. We must do what we can, as Dr. King said, to create the beloved community.” Video of Lewis’s speech is here.

  • August 13, 2013
    Guest Post

    by Nkechi Taifa, senior policy analyst for civil and justice reform at the Open Society Foundations and convener of the Washington-based Justice Roundtable

    U.S. Attorney General Eric Holder announced significant steps today at the American Bar Association’s annual meeting in San Francisco to correct the deepest, costliest and worst aspects in our criminal justice system. The reforms he outlined in remarks entitled, Smart on Crime, were a long time coming for the criminal justice advocacy community.

    Although Congress recently approved legislation to help prisoners re-enter society and to reduce the infamous disparity between crack and powder cocaine, previous Presidents and Congress have never addressed the root causes of mass incarceration. These unjust laws and policies that drive up the U.S. prison population include inflexible front-end decisions that define who goes to prison and for how long, as well as stubborn back-end choices that impede early release.

    Today, in the fifth decade of both the March on Washington and the War on Drugs, the Attorney General has ushered in a revolutionary moment by advancing the policy discussion around widespread incarceration that has cost billions of dollars without making society any safer, and reducing flaws of a system that sends too many people of color to prison.

    The policies outlined in Holder’s speech will recalibrate the federal criminal justice system by correcting obstacles, inefficiencies and inequities and transforming law enforcement strategies so they alleviate, rather than exacerbate, harsh punishment.

  • August 13, 2013
    Guest Post

    by Stephen Wermiel, Professor of Practice, American University Washington College of Law

    Attorney General Eric Holder touched off a new chapter in his Justice Department tenure yesterday by unveiling a set of far-reaching and important criminal justice reforms that supporters of the Obama administration have long awaited. Holder’s speech captured the attention and fired up the spirit of an otherwise somewhat lethargic American Bar Association annual meeting in San Francisco. Holder expressed what is likely the strongest, clearest vision yet from the Obama administration and one that his admirers have hoped would be part of his legacy: “Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.”

    Of important note is that a number of the things Holder discussed can and apparently will be done within the Executive Branch and do not require consideration or approval by a Congress incapacitated by partisan gridlock. Specifically, Holder has instructed federal prosecutors to change the way they bring drug charges against individuals who commit low-level offenses and who have no ties to gangs, drug cartels or organized crime. Federal law mandates the use of mandatory minimum prison sentences for some drug crimes, and changing the law would require Congress to act. Holder noted that there is bipartisan support in the Senate to reform mandatory minimums for drug offenses. But Holder can act on his own and now has done so to urge federal prosecutors to exercise discretion by charging different crimes that do not trigger mandatory minimums and that, as Holder said, will better reflect the severity of the misconduct without draconian excessive criminal sentences.  This is an important recognition of the major shortcomings of the decades-old war on drugs that has consumed billions of dollars in law enforcement budgets and tens of thousands of lives ruined by prison terms that were out of proportion to the crime or the nature of the individual. Holder also said U.S. attorneys will be urged to make greater use of drug diversion programs as alternatives to incarceration.

    Another very important recognition by Holder followed on the heels of President Obama’s remarks on the Trayvon Martin case last month. Holder told the ABA “that young black and Latino men are disproportionately likely to become involved in our criminal justice system – as victims as well as perpetrators.” He added, “We also must confront the reality that – once they’re in that system – people of color often face harsher punishments than their peers.”  The racial injustice of the criminal justice system is a subject that needs urgent attention from Holder and other leaders.

  • August 13, 2013
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

    Attorney General Eric Holder announced a new charging policy that has the potential to eliminate mandatory minimum sentences in many drug cases. Holder’s Aug. 12 announcement marks the most significant policy change in what has been, until now, a largely rhetorical shift away from the failed war on drugs

    The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases.  The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor.  The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties.  Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms.  (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)

    The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.”   And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability. 

    Take drug couriers for example.  Drug couriers are considered expendable by drug organizations.  Most are addicts or otherwise down-on-their luck.  In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown.  They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border.