Prisoners and advocacy groups call on the Bureau of Prisons to clean up its act, Colombia's new president has some words for the US, and more.
Colombian President Gustavo Petro continues to push against the war on drugs. (Creative Commons)
Psychedelics
San Francisco Effectively Decriminalizes Natural Psychedelics. The city's Boad of Supervisors voted unanimously Tuesday night to approve a resolution that effectively decriminalizes natural psychedelics. The resolution includes the "full spectrum of plants, fungi, and natural materials that can inspire personal and spiritual well-being," and includes ayahuasca, DMT, ibogaine, mescaline, psilocybin. The resolution also allows for the "planting, cultivating, purchasing, transporting, distributing, engaging in practices with" those substances and provides no limits on quantities that may be possessed. The resolution effectively decriminalizes these substances by designating them the lowest law enforcement priority, but they remain illegal under state and federal law. San Francisco now joins Arcata, Oakland, and Santa Cruz among California cities that have embraced such measures. A dozen other citizens around the country have, too.
Incarceration
Incarcerated People and Advocacy Organizations Urge Reform of US Bureau of Prisons. In a letter Tuesday to federal Bureau of Prisons Director Colette Peters, current and former federal prisoners and an array of sentencing, drug policy, and other advocacy groups called on her to "bring the Bureau into compliance with federal law and to lead the Bureau toward a more humane future grounded in transparency and accountability." The letter cited a number of issues and concerns, including unsafe and inhumane prisons, the need for the Bureau to use its power to seek compassionate release, the need for the Bureau to comply with the First Step Act (there are chronic delays in releasing people who qualify), and the pervasiveness of abuse, corruption, and misconduct. In addition to individual signers, the letter was endorsed by the ACLU, Citizens United for the Rehabilitation of Errants (CURE), the Drug Policy Alliance, Fair and Just Prosecution, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, National Council of Churches, and the Sentencing Project, which organized the campaign.
Foreign Policy
Colombian President Warns US Drug War Has Failed, Change Must Come. President Gustavo Petro warned the US on Wednesday the he believes the US-led war on drugs in his country is a failure and called for substantial changes in drug policy. The statement came after he met with the commander of the United States Southern Command, General Laura Richardson. "We were now talking at length with General Laura Richardson … about the failure of the anti-drug policy. I think it should be called without fear: the policy that (Richard) Nixon had in the time It was called the War on Drugs, has failed here," said Petro from the presidential palace. "It is our duty before the United States, but also before the world, to not only say this, but to propose alternatives that will not kill more than a million Latin Americans."
Colombia is the world's largest coca and cocaine producer, and Petro said that his own country is "the biggest culprit" because rural poverty makes drug cultivation and trafficking an attractive livelihood. Petro has moved to restrict the aerial spraying of herbicides and limited the resort to forced eradication of coca crops, promoting voluntary crop substitution instead. He is also proposing changes in the extradition treaty between Colombia and the US to allow those who cooperate with Colombia to avoid extradition to the US.
International
United Kingdom Blocks Bermuda from Legalizing Marijuana. In a rare move, the UK's Governor for Bermuda, who, as the queen's representative typically provides pro forma assent to the Bermudan government's actions, has intervened to block marijuana legalization in the British Overseas Territory. Even as incoming British Prime Minister Liz Truss was vowing to "stand up for freedom and democracy around the world," her government was directing the governor to block the marijuana legalization bill. "I have now received an instruction, issued to me on Her Majesty’s behalf, not to Assent to the Bill as drafted," the governor said. "The Secretary of State for Foreign, Commonwealth and Development Affairs concluded that the Bill, as currently drafted, is not consistent with obligations held by the UK and Bermuda"under international anti-drugs conventions dating back to 1961. Liz Truss was foreign secretary until Tuesday when she became prime minister. In a statement, the Bermudian government said the move was "disappointing, but not surprising, given the confines of our constitutional relationship with the UK government and their archaic interpretation of the narcotic conventions. The Bermudian government said it would continue to move forward on marijuana legalization, which could put the country on a collision course with the UK. "The people of Bermuda have democratically expressed their desire for a regulated cannabis licensing regime, following the strong endorsement at the ballot box and an extensive public consultation process. The Government of Bermuda intends to continue to advance this initiative, within the full scope of its constitutional powers, in keeping with our 2020 general election platform commitment." Bermudian Premier David Burt has not commented on this move, but warned earlier that: "If Her Majesty’s representative in Bermuda does not give assent to something that has been passed lawfully and legally under this local government, this will destroy the relationship we had with the United Kingdom."
Signature-gathering for a marijuana legalization inititiave is underway in Oklahoma, the courts block a San Francisco effort to enact broad bans on alleged drug dealers in the Tenderloin, and more.
San Francisco. The courts are blocking the city's effort to ban alleged drug dealers from the Tenderloin. (Creative Commons)
Marijuana Policy
Ohio Marijuana Legalization Initiative Campaign Files Preemptive Lawsuit Over Whether It Will Appear on November Ballot. Anticipating an effort by Republican lawmakers to keep their marijuana legalization initiative off the November ballot, the Coalition to Regulate Marijuana Like Alcohol filed a lawsuit last Friday to block the expected move. Secretary of State Frank LaRose (R) submitted petitions to the legislature on January 28, giving it until May 28 to approve the petitions calling for legalization, after which, the coalition could then do another round of signature-gathering to put the question directly before voters in November. But Republican legislative staffers have argued that because the petitions were not submitted to the legislature 10 days before the start of the session, as required by the state constitution. But the preemptive lawsuit argues there is state Supreme Court precedent for allowing a November vote.
Oklahoma Marijuana Legalization Initiative Campaign Begins Signature-Gathering. Marijuana legalization advocates have begun signature gathering for State Question 820, which would legalize adult use marijuana and levy a 15 percent excise tax on retail purchases to fund the Oklahoma Medical Marijuana Authority. Campaigners will need 95,911 valid voter signatures to qualify for the November ballot and have until August 1 to do so. Another pair of initiatives could also appear on the ballot. State Question 818 would create a State Cannabis Commission that would replace the OMMA and guarantee patients' medical cannabis access in the Oklahoma Constitution, while State Question 819 would legalize adult-use marijuana and guarantee medical and adult-use marijuana access in the Constitution. Because these two questions would change the state constitution, they face a higher signature-gathering threshold than State Question 820, which would only make statutory changes. The threshold for constitutional questions is 177,958 valid voter signatures.
Drug Policy
California Appeals Court Blocks San Francisco Bid to Ban Drug Dealers from Tenderloin, SOMA. In a case that began when the city sued 28 alleged drug dealers in the Tenderloin and South of Market (SOMA) neighborhoods and banned them from a 50-square-block area in those neighborhoods, which are rife with open drug dealing and drug use, a state appeals court has upheld a lower court decision last year blocking the bans from taking effect. In its ruling last Friday, the 1st District Court of Appeals held that while local governments may be entitled to narrowly target ban orders in some limited circumstances, but not such a broad one. The lower court decision held that the ban was so broad it would violate the constitutional right to travel, and that state law did not appear to authorize it.
The appeals court largely agreed: "We are mindful of, and sympathetic to, the challenges faced by the city in addressing the issues of illegal drug sales, drug use, and the drug-related health crisis and its effects on the people who live and work in the neighborhood," Justice Marla Miller wrote in Friday's 3-0 ruling. But, she continued, "although the city contends these defendants have no reason to ever even be in the 50-square-block Tenderloin neighborhood except to sell drugs there was evidence that many community resources and government agencies are located in the Tenderloin." The lower court judge was entitled to believe statements from the four people "that they were interested in taking advantage of the employment, treatment, housing, and health services available in the 50-square-block neighborhood," the appeals court added. The city said it was "disappointed" with the ruling, but had yet to decide whether to appeal.
Education
Pell Grants Will Be Available for Prisoners Again Beginning Next Year. Once upon a time, incarcerated Americans were able to try to advance themselves by using Pell Grants to pay for college tuition and textbook costs -- just like other students -- but when Congress passed the Violent Crime Control and Law Enforcement Act of 1994, it barred prisoners from accessing that financial aid. In 2020, though, Congress restored the eligibility for both state and federal prisoners. In the fall of 2021, the Department of Education begin developing rules for the expansion of Pell Grants to prisoners and has now announced that application forms for imprisoned students will be available on October 1 for the 2023 academic year.
International
British Virgin Islands Premier Asserts Immunity in Cocaine Case, Demands Immediate Release. British Virgin Islands (BVI) Premier Andrew Fahie, who was arrested last week in a US government sting in Miami, argued in court Monday that as the elected head of government, he is immune from prosecution and should be released immediately. No word yet on when a federal judge will decide that question, and in the meantime, Fahie remains in custody. Fahie and his ports director, Oleanvine Maynard, were busted at the Miami airport where they met what they thought were Mexican drug traffickers but were actually DEA agents seducing them into a scheme to import cocaine from South America through the BVI. Back home, Fahie already faced allegations of deep corruption, and his arrest may help propel a push to temporarily suspend the constitution and return to rule from London in an effort to clean up the government. Busting a head of state is a big deal and would have required approval at the highest levels of the Justice and State departments.
Despite significant advances made by governments around the world in humanizing drug control systems since the turn of the century, human rights abuses still seem to be taking place in the course of enforcing drug prohibitions in recent years and, in some cases, have only gotten worse.
The United States continues to imprison hundreds of thousands of people for drug offenses and imposes state surveillance (probation and parole) on millions more. The Mexican military rides roughshod over the rule of law, disappearing, torturing, and killing people with impunity as it wages war on (or sometimes works with) the infamous drug cartels. Russia and Southeast Asian countries, meanwhile, hold drug users in "treatment centers" that are little more than prison camps.
A virtual event last summer, which ran parallel to the United Nations High-Level Political Forum on Sustainable Development, shined a harsh light on brutal human rights abuses by the Philippines and Indonesia in the name of the war on drugs and also highlighted one method of combating impunity for drug war crimes: by imposing sanctions on individuals responsible for the abuses.
Event organizer and executive director of the organization David Borden opened the meeting with a discussion about the broad drug policy issues and challenges being witnessed on the global stage.
"Drug policy affects and is affected by many of these broad sustainable development goals," he said. "One of the very important issues is the shortfall in global AIDS funding, especially in the area of harm reduction programs. Another goal -- Peace, Justice, and Strong Institutions -- is implicated in the Philippines, where President [Rodrigo] Duterte was elected in 2016 and initiated a mass killing campaign admitted by him -- although sometimes denied by his defenders -- in which the police acknowledged killing over 6,000 people in [anti-drug] operations [since 2016], almost all of whom resisted arrests, according to police reports. NGOs put the true number [of those who were] killed at over 30,000, with many executed by shadowy vigilantes."
The International Criminal Court (ICC) has proposed a formal investigation of human rights abuses in the Philippines drug war, but the court seems hampered by a chronic shortfall in funding, Borden pointed out.
"Former prosecutors have warned pointedly on multiple occasions of a mismatch between the court's mission and its budget," he said. "Recent activity at the conclusion of three different preliminary investigations shows that while the prosecutor in the Philippines moved forward, in both Nigeria and Ukraine, the office concluded there should be formal investigations, but did not [submit] investigation requests, leaving it [up to the] new prosecutors [to decide]. The hope is [that the ICC] will move as expeditiously as possible on the Philippines investigation, but resources will affect that, as will the [Philippine] government's current stance."
The government's current stance is perhaps best illustrated by President Duterte's remarks at his final State of the Nation address on July 26. In his speech, Duterte dared the ICC to "record his threats against those who 'destroy' the country with illegal drugs," the Rappler reported. "I never denied -- and the ICC can record it -- those who destroy my country, I will kill you," said Duterte. "And those who destroy the young people of my country, I will kill you, because I love my country." He added that pursuing anti-drug strategies through the criminal justice system "would take you months and years," and again told police to kill drug users and dealers.
At the virtual event, Philippines human rights advocate Justine Balane, secretary-general of Akbayan Youth, the youth wing of the progressive, democratic socialist Akbayan Citizens' Action Party, provided a blunt and chilling update on the Duterte government's bloody five-year-long drug war.
"The killings remain widespread, systematic, and ongoing," he said. "We've documented 186 deaths, equal to two a day for the first quarter of the year. Of those, 137 were connected to the Philippine National Police, the Philippine Drug Enforcement Agency, or the armed forces, and 49 were committed by unidentified assailants."
The "unidentified assailants" -- vigilante death squads of shadowy provenance -- are responsible for the majority of killings since 2016.
"Of the 137 killed, 96 were small-time pushers, highlighting the fact that the drug war is also class warfare targeting small-time pushers or people just caught in the wrong place or wrong time," Balane said.
He also provided an update on the Duterte administration's response to ICC Prosecutor Fatou Bensouda's June 14 decision concluding her preliminary examination of human rights abuses in the Philippine drug war with a request to the ICC to open a formal investigation into "the situation in the Philippines."
In a bid to fend off the ICC, in 2020, the Philippine Justice Department announced it had created a panel to study the killings carried out by agents of the state -- police or military -- but Balane was critical of these efforts.
"[In the second half of 2020], the Justice Department said it had finished the initial investigations, but no complaints or charges were filed," he said. "They said it was difficult to find witnesses [who were willing to testify about the killings], but [the victims'] families said they were not approached [by the review panel]."
The Justice Department is also undercutting the Philippine Commission on Human Rights, an independent constitutional office whose primary mission is to investigate human rights abuses, Balane pointed out.
"The Justice Department said the commission would be involved [in the investigation process by the panel], but the commission says [that the] Justice [Department] has yet to clarify its rules and their requests have been left unanswered," Balane said. "The commission is the constitutional body tasked to investigate abuses by the armed forces, and they are being excluded by the Justice Department review panel."
The Justice Department review is also barely scraping the surface of the carnage, Balane said, noting that while in May the Philippine National Police (PNP) announced they would be granting the review panel access to 61 investigations -- which accounts for less than 1 percent of the killings that the government acknowledged were part of the official operations since 2016 -- the PNP has now decreased that number to 53.
"The domestic review by [the] Justice [Department] appears influenced by Duterte himself," said Balane. "This erodes the credibility of the drug war review by the Justice Department, which is the government's defense for their calls against international human rights mechanisms."
The bottom line, according to Balane, is that "the killings continue, they are still systematic, and they are still widespread."
In Indonesia -- where, like Duterte in the Philippines, President Joko Widodo (Jokowi) also declared a war on drugs in 2016 -- it is not only extrajudicial killings that are the issue but also the increasing willingness of the government to resort to the death penalty for drug offenses.
"Extrajudicial killings [as a result of] the drug war are happening in Indonesia," said Iftitahsari, a researcher with the Indonesian Institute for Criminal Justice Reform, who cited 99 extrajudicial killings that took place in 2017 and 68 that happened in 2018, with a big jump to 287 from June 2019 through June 2020. She also mentioned another 390 violent drug law enforcement "incidents" that took place from July 2020 through May 2021, of which an estimated 40 percent are killings.
"The problem of extrajudicial killings [in Indonesia] is broader than [just] the war on drugs; we [also] have the problem of police brutality," Sari said. "Police have a very broad authority and a lack of accountability. There is no effective oversight mechanism, and there are no developments on this issue because we have no mechanisms to hold [the] police accountable."
Indonesia is also using its courts to kill people. Since 2015, Sari reported, 18 people -- 15 of them foreigners -- have been executed for drug offenses.
"In addition to extrajudicial killings, there is a tendency to use harsher punishment, capital punishment, with the number of death penalties rising since 2016," she said.
Statistics Iftitahsari presented bore that out. Death penalty cases jumped from 22 in 2016 to 99 in 2019 and 149 in 2020, according to the figures she provided during the virtual event.
Not only are the courts increasingly handing down death sentences for drug offenses, but defendants are also often faced with human rights abuses within the legal system, Sari said.
"Violations of the right to a fair trial are very common in drug-related death penalty cases," she said. "There are violations of the right to be free from torture, not [to] be arbitrarily arrested and detained, and of the right to counsel. There are also rights violations during trials, including the lack of the right to cross-examination, the right to non-self-incrimination, trial without undue delay, and denial of an interpreter."
With authoritarian governments such as those in Indonesia and the Philippines providing cover for such human rights abuses in the name of the war on drugs, impunity is a key problem. During the virtual event's panel discussion, Scott Johnston, of the U.S.-based nonprofit Human Rights First, discussed one possible way of making human rights abusers pay a price: imposing sanctions on them individually, especially under the Global Magnitsky Act.
That US law, which was based on one enacted in 2012 to target Russian officials deemed responsible for the death of Sergei Magnitsky in a Russian prison, was expanded in 2016 to punish human rights violators around the globe by freezing their assets or denying them visas to enter the United States. A related law known by its spot in the US Code, "7031(c)," can also be used to deny visas to immediate familly members of the alleged abusers.
"In an era [when]... rising human rights abuses and also rising impunity for committing those abuses [are]... a hallmark of what's happening around the world, we see countries adopting these types of targeted human rights mechanisms [imposing sanctions] at a rate that would have been shocking even five or six years ago," said Johnston. "Targeted sanctions [like the Global Magnitsky Act] are those aimed against specific individual actors and entities, as opposed to countrywide embargos," he explained.
The Global Magnitsky program is one such mechanism specifically targeted at human rights abuses and corruption, and the United States has imposed it against some 319 perpetrators of human rights abuses or corruption, Johnston said. (The most recent sanctions imposed under the act include Cuban officials involved in repressing recent protests in Cuba, corrupt Bulgarian officials, and corrupt Guatemalan officials.)
"We've seen a continued emphasis on using these tools in the transition to the Biden administration, with 73 cases [of sanctions having been reported] since Biden took office," he noted.
And it is increasingly not just the United States.
"The US was the first country to use this mechanism, but it is spreading," Johnston said. "Canada, Norway, the United Kingdom, [and] the European Union all have these mechanisms, and Australia, Japan, and New Zealand are all considering them. This is a significant pivot toward increasing multilateral use of these mechanisms."
While getting governments to impose targeted sanctions is not a sure thing, the voices of global civil society can make a difference, Johnston said.
"These are wholly discretionary and [it]... can be difficult to [ensure that they are]... imposed in practice," he said. "To give the U.S. government credit, we have seen them really listen to NGOs, and about 35 percent of all sanctions have a basis in complaints [nonprofits]... facilitated from civil society groups around the world."
And while such sanctions can be politicized, the United States has imposed them on some allied countries, such as members of the Saudi government involved in the killing of U.S.-based journalist Jamal Khashoggi and in cases of honor killings in Pakistan, Johnston noted.
"But we still have never seen them used in the context of the Philippines and Indonesia."
Maybe it is time.
In addition to the speakers quoted above, our event also included Marco Perduca, representing Associazone Luca Coscioni, who served in Italy's Senate from 2007-2013.
Our event elicited responses from the government on Indonesia, live during the Questions and Comments section; and from the government of the Philippines in writing later. We also had questions and comments from Kenzi Riboulet Zemouli of NGO FAAAT; iDEFEND Philippines Secretary General Rose Trajano; and Gang Badoy Capati, Executive Director of Rock Ed Philippines, who was a speaker on our 2021 HLPF event.
The Chacruna Institute releases a guide for psychedelic churches, the Justice Department says the Bureau of Prisons short-changed up to 60,000 First Step Act prisoners on their earned-time credits, and more.
Dubai skyline (Pixabay)
Marijuana Policy
Kentucky Lawmaker Pre-Files Marijuana Legalization Bills for 2022. State Rep. Nima Kulkarni (D) announced Monday that she is pre-filing two parallel bills to legalize marijuana. One bill would proceed along the statutory legislative route, while the other would ask legislators to approve a constitutional amendment to legalize marijuana, which would then go before the voters. "I am sponsoring these bills for several reasons, any one of which should be enough for them to become law," Kulkarni said. "First, current cannabis statutes have needlessly and tragically ruined many lives, especially people of color who have suffered because of unequal enforcement. Second, thousands of citizens, from cancer patients to veterans suffering from PTSD, should have the right to use something that gives them the mental and physical relief they deserve without relying on stronger, potentially addictive medicine. Third, cannabis decriminalization would give the state a much-needed source of reliable revenue without raising current taxes a single cent."
"This Guide is written to simply explain the laws and basic information needed by a psychedelic plant medicine church to make informed decisions and understand its rights and risks by operating in the United States," said Allison Hoots, member of Chacruna's Council for the Protection of Sacred Plants. The guide is a comprehensive resource on the Religious Freedom Restoration Act (RFRA) and how a church using psychedelic plant medicine as sacrament can be informed by the law in terms of its operation and establishing its rights under RFRA. Download it here.
Drug Policy
Florida Lawmaker Introduces Bill to Decriminalize All Drugs. State Rep. Dotie Joseph (D) has filed a drug decriminalization bill, the "Collateral Consequences of Convictions and Decriminalization of Cannabis and All Drugs Act" (House Bill 725). The bill would make possession of up to an ounce of marijuana a violation punishable by no more than a $50 fine and automatically expunge past arrest and conviction records if the offense is more than a year old. The bill adds that the legislature prioritizes "rehabilitative health intervention in lieu of criminalization for personal usage of controlled substances, including but not limited to stimulants including cocaine, methamphetamine, opioids, heroin, fentanyl, depressants or benzodiazepines, and other addictive controlled substances." To that end, charges "associated with the personal usage and possession of controlled substances that do not involve production, distribution or sale shall be decriminalized in favor of civil fines and referral for drug rehabilitation."
Sentencing
Justice Department Finds Federal Bureau of Prisons Failed to Apply Earned Time Credits to First Step Act Prisoners. Justice Department Inspector General Michael Horowitz has released a report charging that the Bureau of Prisons (BOP) failed to properly credit up to 60,000 federal prisoners with time served under the First Step Act's recidivism programs. "We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community," Horowitz wrote in the report. Under the First Step Act, inmates who completed a recidivism program could receive time-served credit, but the BOP told the inspector general the credits were not applied becausethey "must be negotiated with the national union because it would create changes to conditions of employment, including determinations and application of earned time credits for inmates, for Unit Team staff working in BOP institutions who are bargaining unit employees," according to the report.
International
United Arab Emirates Enacts Drug Reforms. The United Arab Emirates (UAE) has dramatically amended its drug laws to allow for drug treatment instead of prison for first-time offenders. The new law mandates the creation of specialized treatment and rehabilitation units throughout the country, where judges can place offenders instead of in prison. The new law also changes the UAE's stance toward foreigners who get caught carrying food items or other products containing drugs (mainly marijuana). Under the old law, deportation was mandatory in such cases, but now people caught with such items will face no charges, but the items will be seized. The new law also increases penalties for some repeat offenders and imposes a mandatory minimum five-year sentence for anyone "who induced, incited or facilitated drug use for another person." The new law goes into effect January 2.
A fire at an overcrowded Indonesian prison kills at least 41, mostly drug offenders; a Maryland House of Delegates working group is moving forward with plans for marijuana legalization, and more.
Coming soon to an Italian balcony? Italy is moving to allow home marijuana cultivation. (Creative Commons)
Marijuana Policy
Maryland House Marijuana Policy Working Group Meets, Lays Out Plans. A 10-member working group of House members that is studying how to legalize marijuana met for the first time Wednesday and laid out plans for the future. "The House of Delegates will pass a measure to put the question of legalizing on the ballot for the 2022 general election," said work group chair Del. Luke H. Clippinger (D-Baltimore). "This work group will continue meeting throughout the interim. This work group will establish the legal framework necessary to fully implement the legalization of marijuana and learn from the mistakes that other states have made before us," Clippinger said. The working group will meet next on October 9. Maryland's neighbors Virginia and Washington, DC, have already legalized marijuana.
International
Indonesia Prison Fire Kills 41, Mostly Drug Prisoners. A fire that erupted in the overcrowded Tangerang prison outside Jakarta on Wednesday killed at least 41 inmates, the majority of them serving time for drug offenses. At least two foreigners serving drug sentences were among the dead. The fire broke out in the middle of the night in the prison's C2 Block, where 19 cells built to hold 40 inmates were packed with more than triple that number. Under President Joko Widodo, Indonesia has intensified its war on drugs, with extrajudicial executions, drug prosecutions, and death sentences all on the rise.
Italy Moves to Allow Personal Marijuana Grows. A measure to decriminalize the personal cultivation of up to four marijuana plants is advancing in the parliament after it was approved by the Lower House's Justice Committee on Wednesday. While the bill removes penalties for growing, it increases penalties for dealing and trafficking marijuana, increasing the possible maximum sentence from six to 10 years. The move comes almost two years after the Supreme Court ruled that small-time domestic marijuana cultivation is legal. In Europe, the only countries that currently allow for personal grows are Spain and the Czech Republic, which both allow up to five plants.
The Philadelphia City Council votes to bar most pre-employment drug testing for marijuana, leading Democratic senators call on the attorney general to undo a Trump-era ruling that federal prisoners freed because of the pandemic must return to prison once it ends, and more.
Prisons in Washington could be a bit emptier once the state makes drug possession a misdemeanor. (Pixabay)
Marijuana Policy
Florida Supreme Court Strikes Down 2022 Marijuana Legalization Initiative. The state Supreme Court last Thursday threw out a proposed voter initiative constitutional amendment, holding that the measure's ballot summary was misleading because it says it "permits" the possession, production, and sale of marijuana when marijuana is still illegal under federal law. The state's Republican attorney general challenged the initiative on those grounds last year and the state's all Republican-appointed court justices agreed. Now, its back to the drawing board for legalization supporters in the state.
Philadelphia City Council Votes to Prohibit Pre-Employment Drug Screening for Cannabis. The city council voted overwhelmingly to approve a municipal ordinance, Bill No. 200625, that "prohibits employers from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment, under certain terms and conditions." Some safety-sensitive positions, such as police officers or those who supervise children or medical patients will be exempted, as well drug testing mandated under federal law. Mayor Jim Kenney (D) is expected to sign the measure into law.
Drug Policy
Washington Legislature Passes Bill to Make Drug Possession a Simple Misdemeanor. The legislature on Saturday gave final approval to a bill designed to overhaul the state's drug sentencing scheme after the state Supreme Court in February threw out the state's felony drug possession law. The bill, Senate Bill 5476, passed the Senate with language making drug possession a gross misdemeanor punishable by up to a year in jail, but the House amended it to make possession a simple misdemeanor punishable by only up to 90 days in jail. The House also amended the bill so that it expires in two years, leaving the state with no drug possession law unless the legislature acts again.
Incarceration
Leading Democratic Senators Call on Attorney General to Rescind Trump-Era Ruling That Federal Prisoners Released Because of Pandemic Must Return to Prison When Pandemic Ends. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and US Senator Cory Booker (D-NJ), Chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, last Friday sent a letter to Attorney General Merrick Garland requesting that he rescind the Office of Legal Counsel's January 15, 2021, memorandum opinion entitled "Home Confinement of Federal Prisoners After the COVID-19 Emergency" (OLC opinion). In their letter, Durbin and Booker write that the OLC opinion, issued during the Trump Administration, incorrectly finds that following the emergency period of the pandemic, the Bureau of Prisons (BOP) must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities. In fact, the CARES Act neither requires nor permits BOP to recall these prisoners, according to the letter.
The Montana marijuana legalization initiatives have survived a last-minute legal challenge, the ACLU and DPA challenge the murder conviction of a meth-using California woman whose fetus was stillborn, and more.
There are fewer people behind bars in the US again this year. (Pixabay)
Marijuana Policy
Montana Supreme Court Quickly Rejects Lawsuit Against Marijuana Ballot Initiatives. The Montana Supreme Court denied and dismissed a lawsuit seeking to remove CI-118 and I-190, the complementary marijuana legalization initiatives, from the November ballot. I-190 is a statutory initiative that would legalize, regulate, and tax marijuana for adults 21 and over. CI-118 is a constitutional initiative that would allow I-190 to set the minimum age at 21. The initiatives are complementary and work together to establish a careful framework for legalizing marijuana in Montana.
Reproductive Rights
ACLU, DPA File Brief in Support of Motion to Reopen Case of Meth-Using California Woman Convicted of Murder for Stillborn Birth. The ACLU of Northern California and Drug Policy Alliance filed briefs in support of a motion to allow for Adora Perez, who is serving 11 years in prison for manslaughter after delivering a stillbirth baby, to appeal her case. Attorneys Mary McNamara and Audrey Barron of Swanson & McNamara LLP and Matthew Missakian of the Law Office of C. Matthew Missakian filed the motion, arguing that "Ms. Perez was prosecuted for a crime that doesn’t exist and is now imprisoned basedon a plea that shouldn’t have been accepted." Perez was charged with murder in 2017 for taking methamphetamines while pregnant, even though "California law explicitly exempts women from murder liability for any actions they take that may end their pregnancy." Her attorney at the time told her to plead guilty to manslaughter and serve 11 years in prison to avoid worse charges.
Sentencing Policy
US Imprisonment Rate at Lowest Rate Since 1995.he combined state and federal imprisonment rate of 419 sentenced prisoners per 100,000 U.S. residents in 2019 was the lowest imprisonment rate since 1995, the Bureau of Justice Statistics announced Thursday. The imprisonment rate in 2019 marked a 17% decrease from 2009 and a 3% decrease from 2018, and it marked the 11th consecutive annual decrease. The imprisonment rate—the portion of U.S. residents who are in prison—is based on prisoners sentenced to more than one year. An estimated 14% of sentenced state prisoners were serving time for murder or non-negligent manslaughter at year-end 2018, and 13% were serving time for rape or sexual assault. At the end of fiscal-year 2019, 46% of sentenced federal prisoners were serving time for a drug offense (99% for drug trafficking), and 8% were serving time for a violent offense. The total prison population in the U.S. declined from 1,464,400 at year-end 2018 to 1,430,800 at year-end 2019, a 2% decrease. This marked the fifth consecutive annual decrease of at least 1% in the prison population. At year-end 2019, the prison population had declined 11% from its peak of 1,615,500 prisoners in 2009.
One more state will be voting on marijuana legalization in November, Canadian authorities have granted four terminally ill patients the right to use psilocybin for coming to terms with end of life, and more.
COVID is in the federal prisons. California US senators want to do something about it. (Creative Commons)
MarijuanaPolicy
Arizona Marijuana Legalization Initiative Qualifies for Ballot. The Smart and Safe Act marijuana legalization initiative has qualified for the November ballot, the secretary of state's office announced Monday. The measure would allow adults 21 and over to possess up to an ounce of weed and grow up to six plants. It also envisions taxed and regulated sales and features several restorative justice provisions. The measure will be on the ballot as Prop 207.
Incarceration
California US Senators, Congressman Call for COVID-19 Package to Include Funding to Control Federal Prison Outbreaks. Senator Dianne Feinstein, Senator Kamala D. Harris and Congressman Salud Carbajal (all D-CA) called Monday for the House and Senate leadership to quickly finalize a COVID-19 emergency response package that includes critical assistance to respond to outbreaks in federal prisons in California. "We are concerned that BOP has not yet implemented universal testing or onsite testing for inmates and staff to stop the spread of the virus throughout the prison system or within our communities," the members wrote. "We therefore urge you to work swiftly to ensure the necessary funds are made available to better equip the BOP in handling this crisis. The House of Representatives passed the HEROES Act, with $200 million for the BOP to respond to COVID-19 outbreaks, over 10 weeks ago. Our communities cannot afford further delays."
International
Canada to Allow Psilocbyin Access for Terminally Ill Patients. The Health Ministry and the Office of Controlled Substances have announced that four terminally ill patients will be granted access to psilocybin. The move comes just a hundred days after the patients asked the government to let them use the drug to come to terms with their lives ending. "The acknowledgment of the pain and anxiety that I have been suffering with means a lot to me, and I am feeling quite emotional today as a result," said Laurie Brooks, one of the patients able to receive her treatments. "I hope this is just the beginning and that soon all Canadians will be able to access psilocybin, for therapeutic use, to help with the pain they are experiencing, without having to petition the government for months to gain permission."
(This article was prepared by StoptheDrugWar.org's 501(c)(4) lobbying nonprofit, the Drug Reform Coordination Network, which also pays the cost of maintaining this website. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code and does not pay for reporting that could be interpreted or misinterpreted as doing so.)
In a just issued report on reforming the federal criminal justice system, a blue-ribbon task force of the nonpartisan Council on Criminal Justice calls for sweeping changes in the system from its approach to drug offenses to significant sentencing changes, support for getting ex-inmates successfully reintegrated into society, and more.
To make things better in the federal criminal justice system, Congress has some work to do. (Creative Commons)
Formed in July 2019, the Council on Criminal Justice is relatively new on the scene but contains some real heavy hitters. The co-chairs of its advisory board of directors are former US Assistant Attorney General Sally Yates and Koch Industries Senior Vice President Mark Holden, while its founding president is criminal justice expert Adam Gelb and the chair of its board is former head of the Justice Department's Office of Justice Programs Laurie Robinson.
The members of the task force that issued the report, Next Steps: An Agenda for Federal Action on Safety and Justice, are also prominent figures from across the political spectrum. They include former Georgia Gov. Nathan Deal, former Philadelphia Mayor Michael Nutter, former Washington, DC and Philadelphia police chief Gordon Ramsey, American Conservative Union general counsel David Savakian, former director of the Open Society Foundation's Addiction Program's Dr. Kima Taylor, as well as Yates and Holden.
Noting in the report's executive summary that both crime and incarceration rates have receded -- although with a considerable lag between the two -- and that the federal prison population finally peaked in 2013, they write that "[y]et there is broad agreement across the political spectrum that more must be done to make communities safe and guarantee justice -- not just by states and localities, where the majority of the criminal justice system operates, but also by the federal government, which runs the country's largest correctional system and helps set the tone of the national conversation."
The task force sought "to craft a consensus view of the actionable, politically viable steps that the federal government can take now and in the near future to produce the greatest improvements in public safety and the administration of justice." With a nod to the ongoing pandemic, the task force noted that although it "concluded its deliberations before the outbreak of COVID-19, several of the recommendations are highly relevant to the federal response, in the short term and beyond."
So, what does this consensus view on federal criminal justice reforms look like?
The task force came up with 15 policy recommendations for actions by the legislative, executive, and judicial branches, along with detailed rationales for each and equally detailed plans for implementing them. Here are some of the highlights:
Marijuana Policy
Reflecting the task force consensus but not quite catching up with public opinion, which now consistently favors legalization in opinion polls, the task force calls not for federal marijuana legalization but for instead allowing states to set their own marijuana policies through a system of waivers. It finds the status quo where "states are, in effect, licensing individuals and businesses to commit federal felonies" as untenable as "states and the industry continue to operate under an illusion of sovereignty where circumstances can change at any moment."
Instead, they recommend formalizing the status quo, acknowledging that states can enact legalization without fear of federal interference, unless and until marijuana is rescheduled or legalized at the federal level.
Sentencing Policy
The task force makes a number of pointed recommendations when it comes to sentencing policies that have made the land of the free the home of the world's largest prison population. They note that the US Sentencing Commission, which is responsible for setting guidelines for federal prison sentences, is currently paralyzed and "has been unable to modify sentencing guidelines to reflect current law, including the bipartisan reforms of the FIRST STEP Act of 2018," because the Trump administration has failed to fill vacancies on it.
The task force's recommendation here is: "The President and the Senate should fully reconstitute the US Sentencing Commission so it can fulfill its statutory duties to make necessary and timely adjustments to the sentencing guidelines, make recommendations to Congress for needed changes to federal criminal and sentencing statutes, and conduct research on the policies and operations of the federal sentencing and corrections systems."
One of the main drivers of the mushrooming federal prison population -- it grew from 24,000 in 1980 to nearly 220,000 before peaking in 2013 -- is mandatory minimum sentences for drug offenders, leaving federal prisons stuffed "not just with major traffickers but also with thousands of lower-level players in the drug distribution chain, a disproportionate number of whom are minorities," the task force notes.
While, over the years as the incarceration fever began to break, various efforts to mitigate the pernicious effects of mandatory minimums were implemented (and have helped reduce the number of federal prisoners), the task force is ready to be done with them. "Congress should eliminate mandatory minimum sentencing laws for all drug crimes and consider eliminating non-drug mandatory minimums while refraining from enacting any new mandatory minimums pending study," it recommends.
Also on sentencing, the task force notes that neither Congress nor the courts have acted to restrict judges from sentencing someone based on conduct for which they have been acquitted in court, a practice that mainly occurs in drug conspiracy cases. The task force calls on the US Sentencing Commission to amend federal sentencing guidelines to prohibit such sentencing.
And the task force is calling for federal prisoners serving lengthy sentences approved by "tough on crime" legislation in the 1980s and 1990s to be able to appeal to have their sentences reconsidered after serving at least 15 years, with a chance for review every 10 years after that.
Reentry
Giving federal offenders a chance of actually succeeding on the outside upon their release from prison is another main focus of the task force. It starts with recommending that Congress ensure the Bureau of Prisons is working as it should by creating "an independent performance, oversight, and accountability board (Board) to oversee and advise the Bureau of Prisons (BOP)."
To help prisoners prepare for post-carceral careers while still behind bars, the task force calls for the restoration of Pell grants and other expanded educational opportunities, and it recommends several measures to increase their chances once they're back on the street. Among them are sealing low-level criminal records from public view to help employment prospects, expanding public housing access for people with convictions, and providing guidance on closing Medicaid reentry gaps.
The task force also calls for Congress "to support and incentive increased access to residential and community-based treatment services that are evidence-based, including access to Medication-Assisted Treatment (MAT) in order to strengthen reentry programs, prevent recidivism, and promote better health outcomes."
The Council on Criminal Justice is about as establishment and mainstream as it gets. When people like this are shouting for the federal criminal justice system to be fixed, you know it needs to be fixed (if you didn't already). The task force has shown us what needs to be done; now it's up to Congress, the courts, and the administration to act. We shall see.
When, in mid-May, House Democrats rolled out the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R. 6800, the latest congressional response to the coronavirus pandemic, they also included a handful of criminal justice and drug policy reforms in the broad-ranging, 90-page, $3 trillion bill. Most of those reforms are aimed at shrinking the prison population in this time of public health crisis, but also on the list is language that would finally allow state-legal marijuana businesses to gain access to banking and other financial services.
The bill passed the House on Friday, but faces clouded prospects in the Senate.
The spread of the coronavirus within the federal prison system is a real concern. The story of the first female federal prisoner to die of the coronavirus, South Dakota Native American Andrea Circle Bear, brought media attention to the plight of federal prisoners. Sent into the federal system on a two-year drug charge in March, the pregnant Circle Bear came down with coronavirus symptoms within a week, gave birth to a premature baby via c-section while on a ventilator, then died three days later on April 4.
But by then, 31 other federal prisoners had died of the disease. And as of May 14, the federal prisoner death toll had risen to 51, with more than 3,600 inmates infected across the system.
Facing the carceral coronavirus crisis, the Justice Roundtable, a broad-based coalition of more than 100 organizations working to reform federal criminal justice laws and policies, released a set of recommendations for supporting prisoner releases as a public safety response to the pandemic. Those included spending $12 billion on supporting access to housing for released prisoners and another $1 billion incentivizing states and localities to release prisoners and support critical reentry services, as well as ending federal bans on various forms of assistance for people with criminal records, making Medicaid available before prisoners hit the streets, ensuring that people impacted by the criminal justice system get access to federal relief funds, and spending another $650 million to expand federal workforce and educational programs for former prisoners.
The HEROES Act does not do all that, but in Title II it does provide $250 million for reentry programs and another half-billion for efforts to reduce the spread of the virus among arrestees and prisoners at all levels. There is also another $200 million for the Bureau of Prisons to response to the crisis, with funding for medical testing and services and necessary protective supplies.
And there is more. Incorporating various already existing pieces of legislation, Title XI of the act (Prisons and Jails) is the Emergency Community Supervision Act, which during a declared emergency related to communicable diseases "mandates the release into community supervision of federal prisoners and pretrial detainees who are non-violent and, for instance, pregnant women, older prisoners and detainees, and those with certain medical conditions."
Title XI also modifies probation and supervised release policies to reduce unnecessary in-person contact with probation officers, mandates pretrial release of non-violent defendants without cash bail, and gives federal courts more authority to reduce sentences and order compassionate release for prisoners, with a special provision for elderly prisoners.
On another important drug policy front, the HEROES Act incorporates wholesale the SAFE Banking Act, which provides much needed access to the banking and financial services sector for the state-legal marijuana industry. Republicans are already sniping at that, with Senate Majority Leader Mitch McConnell complaining about a provision that would fund studies about diversity and inclusion in the industry.
"There's a lot in this bill," said Kara Gotsch, who heads up federal advocacy for the Sentencing Project, a Washington, DC-based criminal justice reform group and member . "What's critical is to address the inability to do social distancing within correctional facilities," she said.
"We've had a huge spread of the virus in prisons -- not just federal, but state and local, too. Letting those people out into home confinement is critical not just to their health, but also for the health of the people who might stay behind. It creates space, an opportunity to follow the guidelines," Gotsch continued.
The HEROES Act is the work of House Democrats, and while it passed the House, that's only half the battle. In what is certain to be a titanic political struggle, Senate Republicans are pondering their own version of yet another massive coronavirus relief package. In such a huge -- and hugely important -- struggle, the fate of some federal prisoners and legal marijuana entrepreneurs may not loom large, but it hangs in the balance.
"It's clear that McConnell doesn't have the same sense of urgency to move another stimulus package, but I think the pressure is going to increase on the Senate to take some action," said Gotsch. "This pandemic and its consequences are not going away, and the consequences are severe -- more and more people are likely to be infected and lose their lives."
And that means Gotsch and the other criminal justice reform advocates will be hard at work in the coming weeks to see that as many of the House-passed reform measures make it into the final bill as possible.
"I'm hopeful we could see the Senate moving in June, and as far as our priorities are concerned, I'm hopeful we'll can get some of those provisions in the final package," said Gotsch. "We'll be taking the next few weeks to talk to and educate Senate offices. Federal judges are growing increasingly frustrated with the Justice Department's obstruction on compassionate release and its stinginess on home confinement, which is having a disastrous effect. Our goal is to get the word out to Senate staff to make them aware of how dire the situation really is."
She pointed to the sad story of Andrea Circle Bear.
"I think that galvanized a lot of people," said Gotsch. "She puts a human face on the concerns we've been trying to articulate about the tragic circumstances the prisons are facing. With more education and as these tragic stories come to light, I think we'll be able to get some change."
