Back in 1994, in the depths of the war on drugs, Sonny Mikell picked up a third federal drug conviction in Florida and was handed a mandatory minimum sentence of life in prison. No guns, no violence, but the 22-year-old black man was still looking at spending the rest of his life behind bars.
"I had jobs off and on, I worked as a cook, but I got on the path of selling drugs and caught and charged in 1991 and 1992, and then caught that last one in '94," Mikell said in an interview last week. "And they gave me a life sentence for conspiracy to sell crack. All they needed was the two priors, and then they could hand down a life sentence."
Sonny Mikell is emblematic of the tens of thousands of people, disproportionately black and brown, imprisoned with draconian sentences under repressive drug laws passed with bipartisan support in the 1980s and 1990s. The war on drugs caused both state and federal prison populations to skyrocket, cementing the land of the free's status as the world's leading jailer.
In the federal prison system, where Mikell did his time, fewer than 5,000 people were doing time for drug offenses in 1980, before the Reagan-era acceleration of the Nixon-era drug war. By 1995, that number had increased a whopping ten-fold to more than 52,000. With more harsh drug sentences in the 1994 crime bill, the number of federal drug prisoners doubled again to a peak of nearly 99,000 in 2010, before beginning to fall as 21st century efforts to undo the damage of mass incarceration began to kick in.
For 25 years, Mikell did his time quietly while picking up only one minor disciplinary infraction: "I worked, I was a cook in the kitchen, I studied law, I worked on my case, I filed motions to try and see what could help," Mikell said of his years behind bars. "Most got denied."
But as Mikell and thousands like him rotted behind bars for decades, attitudes toward the war on drugs and the resort to mass incarceration to wage it have changed and pressure for relief mounted. Given the failure of the drug war to eliminate drug use, arguably even to reduce it, and given the damage done to communities of color by heavy-handed policing and ever-increasing numbers of breadwinners hauled off to prison and families disrupted, the states began embracing sentencing reforms shortly after the turn of the century.
But it would take a few years more for those new realizations to work their way to the federal law and give Mikell and his fellow federal drug war prisoners the hope that they might somehow, someday be given a second chance. That came under the Obama administration.
While Obama-era Attorney General Eric Holder took significant steps to ease drug-related mass incarceration, such as advising prosecutors to not seek the toughest possible charges, it was the passage of the Fair Sentencing Act in 2010 that marked the first effort to redress the inequities of the drug war. That law reduced -- but did not eliminate -- the disparity in the sentencing of crack and powder cocaine offenses. According to the US Sentencing Commission, the new law helped both to reduce the federal prison population and to lower sentences for new crack offenders,
But because the new law wasn't retroactive, it did no good for Mikell and his imprisoned peers. That changed in 2011, when the Sentencing Commission voted to retroactively apply new, more lenient sentencing guidelines in the Fair Sentencing Act to people sentenced before the law was enacted. With that move, thousands of federal prisoners have been able to seek and obtain sentencing reductions.
But not Sonny Mickell. The Sentencing Commission's move only affected federal sentencing guidelines, not the mandatory minimum laws that had him in a box for life. It would take that rare Trump-era bipartisan achievement, the passage of the First Step Act late last year, to give Mickell a shot at freedom. That law extended the sentencing reductions for crack offenders to people sentenced prior to the passage of the Fair Sentencing Act -- even those with mandatory minimums.
"Hoping it was my chance, I filed for clemency when Obama was in office," Mikell recalled. "The Clemency Project tried, but I get denied. I told myself I couldn't lose hope, and when the First Step Act passed and made those sentencing cuts retroactive, I contacted my lawyers and asked if I qualified."
"I was assigned to Sonny's case," explained Juliann Welch, a federal public defender in the appellate division of the Middle District of Florida. "The judge set a hearing for the case on March 15 and I was ready to argue that he was eligible for some relief, but the judge had already reviewed the records and said he didn't see any reason to keep Sonny in prison and reduced his sentence to time served right there."
Even though federal prosecutors objected to the summary ruling, Welch said it was clearly the correct call: "When they passed the First Step Act, sentences like Sonny's are the wrong they were trying to right," she said. "He had never done a day in prison and then got a mandatory life sentence as a young kid for a nonviolent drug crime."
"Ms. Welch called me the same day the judge issued the order, and they gave me a bus ticket home," Mikell recalled. "That's all they gave me."
In the couple of months that Mikell has been free, he's been reuniting with family, trying to catch up with technology, and trying to reestablish himself in society.
"I have good family support," he said, explaining that the mother of a woman he had dated basically adopted him while he was in prison. "She is a goodhearted woman, she always stayed in contact, and she's still there. It was a sight for me to see her. I can still hardly believe it. I still don't know how to use these phones, though," he laughed.
But being able to find employment is no laughing matter for an ex-con. "I've got a drivers' license and I'm looking for a job, but people want to know what's on your resume, where you've been. Every day I try to find a job, but it's tough with that hanging over my head."
Mikell has something else hanging over his head, too: A potential move by federal prosecutors to appeal his sentence cut and send him back to prison for life.
While prosecutors have yet to actually file their appeal to send Mikell back to prison, Welch said their legal issue was a bit of sentencing arcana that revolved around the weight of the drug for which he could be held culpable. Although he was only found guilty for 50 grams by a jury, a sentencing judge using a lesser standard of evidence in effect at the time found him culpable for 290 grams.
Prosecutors will argue that current federal drug statutes that have a 280-gram cutoff would render Mikell ineligible for release under the provisions of the First Step Act. Welch is prepared to fight that case on its merits, but wonders what the prosecutors are thinking.
"Even though the judge found him responsible for 290 grams, the government never proved anything beyond 50 grams," she said. "But we will argue it and have to wonder why they think a sentencing finding of ten extra grams is worth sending him back to prison for life."
"I think that's just wrong," said Mikell. "The law is designed to help guys like me who have been in for years and years. It gives judges the discretion to give a man a second chance, and these prosecutors are coming back and saying we want you in prison, but they're not looking at the individual, just the law. I didn't do any violent crime on the street or in prison. I don't understand why they're trying to send me back to prison."
Neither does public defender Welch. "They haven't move to reincarcerate him pending appeal," said Welch. "If they really thought he was a public threat, they would have moved to keep him in prison, but they didn't."
Appealing First Step Act sentence cuts would seem to run counter of the law's goals, and it's not clear who in the Justice Department is advising prosecutors to appeal Mikell's case, Welch explained.
"The US Attorney has to have the permission of the Solicitor General to appeal, but we don't actually know how far up the chain this has gone," she said.
Hundreds of inmates have already received sentence cuts under the First Step Act, but at least one other released prisoner has been threatened with an appeal. Gregory Allen's was a similar case to Mikell's, with federal prosecutors raising the same legal issues.
In Allen's case, though, prosecutors voluntarily dismissed the appeal. Maybe it was because it they thought it would look bad since the man they were going after had just been to the White House in an event where President Trump hosted ex-inmates helped by the First Step Act.
"We don't know why that dropped that appeal," Welch said. "We suspect it had something to do with the optics. The Justice Department and US Attorneys have to consider which cases they want to make the face of this fight."
Prosecutors have until the end of the month to actually file their appeal. Welch and Mikell are hoping they will reconsider. After all, that's what the First Step Act is supposed to do.
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As Missouri moves ahead with implementing its voter-approved medical marijuana law, neighboring Iowa sees a bill vetoed by a GOP governor, and more.
Alabama
Alabama Medical Marijuana Patients Push for Bill Approval. With the House set to vote on a medical marijuana bill today, patients rallied at the state capitol to urge its passage. The bill,
SB 236, allows medical marijuana use for specified conditions if other treatments are not working. At least two physicians must sign off on the recommendation, and patients must submit to random drug testing. Republicans were threatening Tuesday to change the bill to create a commission to study the issue for the next session.
Arizona
Arizona Supreme Court Rules Hash Is Medical Marijuana. The state Supreme Court ruled Tuesday that registered medical marijuana patients can use hashish without fear of legal consequence. The ruling comes in the case of a Phoenix man who was arrested with a tiny amount of hash and sentenced to two years in prison. An appeals court had ruled against him, but here's what the Supreme Court said: "We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA. We reverse the trial court's ruling denying Jones's motion to dismiss, vacate the court of appeals' opinion, and vacate Jones's convictions and sentences."
Iowa
Iowa Governor Vetoes Medical Marijuana Bill. Gov. Kim Reynolds (R) last Friday vetoed a medical marijuana expansion bill, HF 732. The bill would have removed the 3% cap on THC and replaced it with a 25-gram limit per patient every 90 days. Reynolds said she vetoed the proposal because the cap of 25 grams over 90 days would allow an individual to consume more THC per day even than a recreational marijuana user. "If approved, it would drastically expand Iowa's medical CBD program far beyond its original scope of CBD-based treatments and could open the door to significant unintended consequences to the health and safety of Iowans," Reynolds said in a statement.
Missouri
Missouri Medical Marijuana Rules Finalized. The state Department of Health and Human Services posted a list of 11 regulations for the medical marijuana industry on its website. The revised rules will be implemented starting next week. Under an initiative passed by voters last fall, the state is required to license 60 growing facilities, 86 manufacturers and 192 dispensaries, 24 for each of the state's eight congressional districts.
Texas
Texas Senate Unanimously Approves CBD Medical Marijuana Expansion Bill. In a surprise move, the Senate voted to approve HB 3703 Wednesday. The bill would expand the states limited Compassionate Use program to allow CBD cannabis oil to be used for a number of new specified disorders, including epilepsy, multiple sclerosis, and autism. The bill now goes back to the House, where it has already passed, for changes to be approved or ironed out in conference committee.
[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]
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Oakland slashes pot taxes for small businesses, Colombia congressmembers plot a marijuana legalization bill, Luxembourg ministers outline their plans for marijuana legalization, and more.
Luxembourg Justice Quarter
Oakland City Council Votes to Cut Marijuana Taxes for Small Businesses. In a bid to protect small marijuana businesses in the city, the City Council voted unanimously Wednesday to lower the gross receipts tax on marijuana businesses that make $500,000 or less a year. The current rate is 10%, one of the highest in the state; the new rate will by 0.12%, a dramatic reduction. Whether bigger pot businesses will get a tax cut, too, will be taken up by the Council next month.
Medical Marijuana
Texas Senate Unanimously Approves CBD Medical Marijuana Expansion Bill. In a surprise move, the Senate voted to approve HB 3703 Wednesday. The bill would expand the states limited Compassionate Use program to allow CBD cannabis oil to be used for a number of new specified disorders, including epilepsy, multiple sclerosis, and autism. The bill now goes back to the House, where it has already passed, for changes to be approved or ironed out in conference committee.
International
Luxembourg Ministers Outline Proposals for Marijuana Legalization Bill. Justice Minister Feliz Braz and Health Minister Etienne Schneider have elaborated on the government's plans to legalize marijuana, which were announced in November. They said they plan to allow people 18 and older to possess up to 30 grams in public, while teens possessing less than five grams would not face charges. They also envision a strictly regulated marijuana market, with THC content limited. (THe limit is not set yet.) Also, only Luxembourg residents will be allowed to purchase marijuana there. They said they planned to present a preliminary bill to parliament by August.
Colombian Congress Preparing Marijuana Legalization Bill. Lawmakers from a wide range of parties have begun working on new legislation that would legalize the production and consumption of marijuana for recreational purposes. The initiative to legalize weed is led by opposition Senator Gustavo Bolivar (Humane Colombia) and would be coauthored by the opposition, the Liberal Party and lawmakers from center-right parties like Radical Change and the U Party. The 12 lawmakers working on the legislation plan to present the bill on July 20, the first day after summer recess.
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It's a busy drug policy week in Colorado, New York lawmakers try a last ditch bid to legalize marijuana this session, Arizona's high court rules that hash is a form of marijuana, and more.
Hashish. Arizona's Supreme Court has clarified that hash is a form of marijuana and patients can use it. (DEA)
New York Lawmakers File New Marijuana Legalization Bill. With only three weeks to go before the session ends, a group of senators last Friday unveiled SB 1527A, which would legalize marijuana. The bill merges the progressive Marijuana Regulation and Tax Act (MRTA), which has been filed repeatedly since 2013, with legislation that is backed by Gov. Andrew Cuomo (D) but which failed to get passed as part of the budget.
Medical Marijuana
Arizona Supreme Court Rules Hash Is Medical Marijuana. The state Supreme Court ruled Tuesday that registered medical marijuana patients can use hashish without fear of legal consequence. The ruling comes in the case of a Phoenix man who was arrested with a tiny amount of hash and sentenced to two years in prison. An appeals court had ruled against him, but here's what the Supreme Court said: "We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA. We reverse the trial court's ruling denying Jones's motion to dismiss, vacate the court of appeals' opinion, and vacate Jones's convictions and sentences."
Iowa Governor Vetoes Medical Marijuana Bill. Gov. Kim Reynolds (R) last Friday vetoed a medical marijuana expansion bill, HF 732. The bill would have removed the 3% cap on THC and replaced it with a 25-gram limit per patient every 90 days. Reynolds said she vetoed the proposal because the cap of 25 grams over 90 days would allow an individual to consume more THC per day even than a recreational marijuana user. "If approved, it would drastically expand Iowa's medical CBD program far beyond its original scope of CBD-based treatments and could open the door to significant unintended consequences to the health and safety of Iowans," Reynolds said in a statement.
Missouri Medical Marijuana Rules Finalized. The state Department of Health and Human Services posted a list of 11 regulations for the medical marijuana industry on its web site. The revised rules will be implemented starting next week. Under an initiative passed by voters last fall, the state is required to license 60 growing facilities, 86 manufacturers and 192 dispensaries, 24 for each of the state's eight congressional districts.
Collateral Consequences
West Virginia Ban on Food Stamps for Drug Felons Ends. A law that would exempt the state from federal law prohibiting people with felony drug convictions from receiving Supplemental Nutrition Assistance Program (SNAP) benefits has now gone into effect. Only people whose drug convictions resulted in injury or death to another will remain banned from the program. West Virginia becomes the 48th state to authorize an exemption from the federal law.
Search and Seizure
Colorado Supreme Court Rules Drug Dog Sniffs are a Search. The state Supreme Court ruled last week that a sniff of a car by a police drug dog constitutes a search. The case was originally about whether a drug dog trained to recognize marijuana alerting on a car would constitute grounds for a search, but the court went beyond that question, ruling that any drug dog sniff is a search, meaning police would have to have probable cause to even do the drug sniff. "The dog's sniff arguably intrudes on a person's reasonable expectation of privacy in lawful activity," Justice William Hood wrote in the majority's ruling. "If so, that intrusion must be justified by some degree of particularized suspicion of criminal activity."
Pill Testing
Colorado Governor Signs Bill Saying Pill-Testing Kits are Not Drug Paraphernalia. As part of a package of bills aimed at easing the opioid crisis, Gov Jared Polis (D) has signed into law SB19-227, which amends state law to exclude testing kits used to identify controlled substances from being considered drug paraphernalia.
Sentencing Policy
Colorado Governor Signs Bill Making Most Drug Possession Felonies Misdemeanors. Gov. Jared Polis (D) signed a major drug policy reform bill into law Tuesday aimed at prioritizing treatment over incarceration and alleviating overcrowding in state prisons. HB19-1263 lowers the penalty for most low-level drug possession offenses from a felony to a misdemeanor beginning in March 2020, and it dedicates funds to substance abuse treatment services and diversion programs. Currently, possession of any amount of a schedule I or II drug is classified as a level 4 drug felony, which is punishable by six to 12 months in prison. After HB19-1263 takes effect, possession of up to four grams of a schedule I or II drug will be classified as a level 1 misdemeanor punishable by up to 180 days in jail and up to two years of probation. The punishment increases to up to 364 days in jail for a third offense, and a fourth or subsequent offense would be a level 4 drug felony. The legislation applies the same penalty reductions to possession of more than 12 ounces of marijuana or more than three ounces of marijuana concentrate. It does not make any changes related to drug distribution offenses.
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The Alabama legislature is busy, an Illinois marijuana legalization bill could get a Senate floor vote today, Louisiana Republicans kill a legalization bill there, and more.
Coming soon to Illinois? Watch the legislature today. (Creative Commons)
Illinois Legalization Bill Could Get Senate Vote Today. The state Senate will recess for an Executive Committee hearing this afternoon to take up the marijuana legalization bill, Senate Amendment 2 to HB 1438. The Senate will then reconvene this evening to take the bill to a floor vote. The bill has picked up some Republican support by altering expungement language from automatic to giving the governor the ability to pardon "with permission to expunge."
Louisiana Legalization Bills Killed. Two marijuana legalization bills, HB 509 and HB 564, were killed Wednesday in the House Criminal Justice Committee on a party line vote with Democrats voting for and Republicans against. "The committee voted as we expected," Kevin Caldwell, founder and president of Commonsense NOLA, which supported the bill, said after the vote. "It is way too much to ask a Republican lawmaker to dare question the Sheriffs and District Attorneys, who financially benefit from prohibition, our state's current policy. Even though the recent LSU poll shows a majority of citizens approve of adult use of cannabis, we have not reached a point where elected officials can challenge the power of the criminal injustice industry in Louisiana."
North Dakota Lawmakers to Study Legalization. The legislature's Legislative Management Committee, which oversees lawmakers' work between sessions, agreed Tuesday to study the implications of legalizing marijuana, ahead of another expected initiative campaign. Voters in North Dakota rejected recreational marijuana last year, but two proposed ballot measures are being proposed for next year.
Medical Marijuana
Alabama Medical Marijuana Patients Push for Bill Approval. With the House set to vote on a medical marijuana bill today, medical marijuana patients rallied at the state capitol to urge its passage. The bill, SB 236, allows for medical marijuana use for specified conditions if other treatments are not working. At least two physicians must sign off on the recommendation, and patients must submit to random drug testing. Republicans were threatening Tuesday to change the bill to create a commission to study the issue for the next session.
Asset Forfeiture
Alabama Senate Votes to Require Civil Asset Forfeiture Tracking. The Senate voted unanimously Tuesday for a bill making it mandatory for law enforcement to report how often they use civil actions to seize a person's property when the person hasn't been convicted of a crime. The bill now goes to the House.
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