Tag Archives: rescheduling

Thanksgiving Week: A Heaping Serving of Yams – Update for Thanksgivng Day 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

YAMS

A true yam (as opposed to a sweet potato) is a monocot, a vigorous herbaceous, perennially growing vine related to lilies and grasses.

yams241128Speaking of “grass,” the marijuana kind, reports last week suggest that Biden’s promise to reclassify marijuana as a Schedule III drug – his latest promise to undo the war on drugs – might be in trouble .

Marijuana reform advocates last week asked an Administrative Law Judge (ALJ) to remove the DEA from its own hearing. They argue the agency has improperly communicated with antimarijuana groups in a bid to torpedo the Biden administration’s proposal. The advocates contended that “prominent doctors, researchers and state regulation experts are not being allowed to testify in a hearing” that will enable the ALJ to recommend whether rescheduling is appropriate.

Last week, the Washington Post reported, ALJ “signaled he will side with the DEA, writing the advocates’ request “adds nothing” and “presents little more than an ad hominem distraction.”

Under the reclassification proposal, marijuana would not be legalized federally like alcohol or tobacco, but would move to Schedule III, a category including prescription drugs such as ketamine, anabolic steroids and testosterone. That could lead to a lessening of Guidelines sentencing ranges, but even if that happens, it won’t happen immediately.

The ALJ pushed back the hearing from December 2nd to some time in January or February because it was unclear whether the 25 witnesses submitted by the DEA favored or opposed reclassification, or even why they should be allowed to testify, according to the ruling.

fail200526Reason magazine last week chronicled Biden’s criminal justice failures: “His voluminous 2020 criminal justice platform (now scrubbed from his website) advocated eliminating mandatory minimum sentences, cash bail, and the federal death penalty.” Another article noted that besides the death penalty, Biden “promised to “eliminate mandatory minimums”; “end, once and for all, the federal crack and powder cocaine disparity”; “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions”; and “use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

So far, Joe’s 0 for 5, and number 6 – use of clemency – hangs in the balance, with 54 days left.

Washington Post, DEA faces legal challenge as uncertainty clouds plan to reclassify marijuana (November 19, 2024)

Reason, Biden Failed To Deescalate the Drug War (November 22, 2024)

– Thomas L. Root

Matt Gaetz: Mere Anarchy at the Dept of Justice – Update for November 19, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THINGS FALL APART

thingsfall241119I tuned out the poetry we studied in high school English, which makes me wonder why President-elect Donald Trump’s announcement last week that Matt Gaetz would be his Attorney General made me recall W.B. Yeats’ work, The Second Coming:

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world;

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned…

Trump has vowed to execute every prisoner on federal death row, to expand the federal death penalty to include drug traffickers and migrants who kill U.S. citizens, to use the military to round up and run out immigrants, and to grant all law enforcement officers immunity from criminal prosecution.

Writing in The Watch last week, Radley Balko observed that Trump “of course promised to weaponize federal law enforcement to settle grudges, exact retribution, and protect his interests.”

Congressman Matt Gaetz (R-FL) is slated to serve as Attorney General. Gaetz, whose legal career spans about three years as a junior associate in a small Florida law firm, has never tried a case nor managed an enterprise, but he’s intended to run the Dept of Justice, of which the Bureau of Prisons is a part.

pervert160728In 2020, Gaetz was accused of child sex trafficking and statutory rape over claims that he paid a 17-year-old high school student for sex. Following an investigation, DOJ decided not to seek charges, concerned that it might not be able to prove the charge beyond a reasonable doubt. Gaetz resigned from the House last week just before the House Ethics Committee was to release a report on the sex charges, alleged drug use and other misconduct.

One DOJ official said of the nomination, “What the f— is happening?!” Another said that Gaetz is the “least qualified person ever nominated for a position in the Department of Justice.”

MSNBC admitted that “in a sense, everybody is unqualified” to serve as Attorney General, because DOJ “is so deep, broad and complex that no one can come in truly prepared for all of it. Nobody comes in knowing everything about tax or antitrust or civil rights or criminal or civil or environmental work. They do not know the intricacies of the work of its many divisions, from the Federal Bureau of Prisons to the Federal Bureau of Investigation.” But, MSNBC argued, AGs need “three qualities: integrity, judgment and independence. With those qualities, you can handle the job… [W]ith Gaetz, you might end up with somebody who is wholly unqualified for the job coupled with somebody who lacks integrity, judgment and independence.”

But why should federal prisoners care? It might be beneficial to have a man who had once been a DOJ target running things.

dungeon180627Don’t count on it. As a state legislator, Gaetz sponsored a bill requiring the Florida governor to sign death warrants for prisoners on death row as soon as their appeals were exhausted. Last July, Gaetz toured El Salvador’s notorious Terrorism Confinement Center where, CNN reported, “convicts and pretrial detainees “spend 23½ hours a day in bleak group cells, eat a bland meatless diet and have just 30 minutes a day for exercise or Bible class.”

“There’s a lot more discipline in this prison than we see in a lot of the prisons in the United States,” Gaetz said at the time. “We think the good ideas in El Salvador actually have legs and can go to other places and help other people be safe and secure and hopeful and prosperous.”

In other transition news, Sen. John Thune (R-SD) will serve as Majority Leader—the person who will control which bills are voted on—in the new Senate, which convenes on Jan 3, 2025. Thune has consistently opposed even modest marijuana reform proposals, once calling legalization a “dangerous path.”

In 2021, Thune acknowledged that marijuana is an “area that’s still evolving, and our country’s views on it are evolving,” adding that “how we deal with it nationally, is still an open question.”

President Biden promised in 2022 that rescheduling marijuana from Schedule I to Schedule III – which could lead to the easing of criminal penalties – would be done by the end of 2024. A DEA hearing on the matter is set for December 4. It’s not clear that final rules can be rolled out before a new and possibly hostile Congress is seated.

Radley Balko – Substack, The “broligarch” threat to criminal justice reform (November 13, 2024)

NBC, Justice Dept. employees stunned at Trump’s ‘insane,’ ‘unbelievable’ choice of Matt Gaetz for attorney general (November 10, 2024)

MSNBC, An attorney general needs 3 qualities to be successful. Matt Gaetz doesn’t even have one. (November 14, 2024)

CNN, Matt Gaetz would oversee US prisons as AG. He thinks El Salvador’s hardline lockups are a model (November 14, 2024)

Marijuana Moment, Every GOP Senate Majority Leader Candidate Opposes Marijuana Legalization (November 12, 2024)

– Thomas L. Root

Everybody’s for Pot – Update for September 16, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FEDERAL MARIJUANA REFORM GAINS TRACTION

marijuana160818Donald Trump last week signaled support for a federal policy shift to reclassify marijuana as a less dangerous drug, putting his position in line with that of his Democratic opponent, Kamala Harris.

Unlike Harris, Trump has not gone so far as to endorse repealing federal pot prohibition, a move that voters overwhelmingly favor. But his statements on marijuana reform suggest he recognizes the political potency of this issue.

According to the US Cannabis Council, this marks the first time that both major-party presidential candidates have supported broad cannabis reform.

Trump, the Republican presidential nominee, posted on his social media platform last week that “I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use… We must also implement smart regulations, while providing access for adults to safe, tested product.”

Trump also has said he supports the Biden administration’s plan to move marijuana from Schedule I of the Controlled Substances Act (CSA) – the most restrictive category – to Schedule III, which includes prescription drugs such as ketamine, Tylenol with codeine, and anabolic steroids. “As President,” Trump wrote, “we will continue to focus on research to unlock the medical uses of marijuana [as] a Schedule 3 drug.”

That reclassification would facilitate cannabis research and be a financial boon to the cannabis industry. However, the sale of marijuana would remain a criminal offense under the CSA.

marijuana221111When Biden proposed rescheduling in October 2022, he promised to complete the job by the end of 2024. Two weeks ago, the Drug Enforcement Administration announced that it would hold a public hearing on the marijuana rescheduling ion December 2. That makes completing the rescheduling before 2025 unlikely.

Last week, The Last Prisoner Project and bipartisan 420 Unity Coalition partners launched the #Countdown4Clemency campaign, calling on Biden to commute the sentences of an estimated 3,000 prisoners doing time for marijuana convictions.

“Time is running out on President Biden’s term, but it is not too late for him to undo the harms inflicted on families impacted by cannabis criminalization,” LPP Executive Director Sarah Gersten said. “With his clemency powers, the president has the opportunity to right history and restore justice by fulfilling his promise that no one should be in jail for cannabis.”

Associated Press, Trump signals support for reclassifying pot as a less dangerous drug, in line with Harris’ position (September 9, 2024)

Reason, Trump Endorses Federal Marijuana Reforms and Reiterates His Support for Legalizing Pot in Florida (September 9, 2024)

#Countdown4Clemency Campaign Calls on Biden to Keep Promise, Free 3,000 People Incarcerated for Cannabis (September 10, 2024)

Federal Register, Schedules of Controlled Substances: Rescheduling of Marijuana (89 FR 70148, August 29, 2024)

– Thomas L. Root

One Toke Over The Line, Sweet Jesus! – Update for May 17, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DOJ PROPOSES RESCHEDULING MARIJUANA

onetoke240517If you remember Brewer & Shipley’s 1970 unlikely hit, “One Toke Over the Line” – a song conceived and written in a pot-induced fog – you were probably not there to hear it. The song became so popular that even Lawrence Welk – who reportedly didn’t know what a ‘toke’ was – had his in-house singers cover the hit on his show.

The Dept of Justice yesterday proposed changing the classification of marijuana from a Schedule I drug–that is, one with no medical use and a high potential for abuse–to a Schedule III substance–one with a moderate to low potential for physical and psychological dependence.

In a document known as a Notice of Proposed Rulemaking (NPRM), the DOJ suggests moving pot from a classification shared with heroin, MDMA and LSD, to one containing medically useful substances like Tylenol with codeine, ketamine, anabolic steroids and testosterone.

marijuanahell190918The proposed rule, to be published in the Federal Register, “recognizes the medical uses of cannabis and acknowledges it has less potential for abuse than some of the nation’s most dangerous drugs,” according to the Associated Press. A 60-day public comment period will begin after the NPRM is published, along with a review of the proposed regulatory reforms by a Drug Enforcement Administration administrative law judge. In all likelihood, a final rule will be pushed out by the Administration before the November election.

The proposal would not legalize marijuana outright for recreational use nor does it directly affect criminal statutes or people serving federal sentences for marijuana cultivation or distribution. Nevertheless, it is likely an incremental step toward making changes in marijuana Sentencing Guidelines and scheduling in the penalties sections of 21 USC 841(b)(1)(A) and (B).

The DOJ proposal comes on the heels of a Dept of Health and Human Services Department review of marijuana scheduling, begun at the urging of President Joe Biden in October 2022.

Biden posted a video on the X (formerly known as Twitter) in which he said the proposal to move pot to Schedule III constitutes “an important move towards reversing longstanding inequities.”

marijuana221111“Today’s announcement builds on the work we’ve already done to pardon a record number of federal offenses for simple possession of marijuana,” the president said. “Look, folks, no one should be in jail for merely using or possessing marijuana. Period… Far too many lives have been upended because of a failed approach to marijuana and I’m committed to righting those wrongs. You have my word on it.”

Writing in Reason, C.J. Ciaramella said

On the campaign trail in 2020, Biden promised to ‘decriminalize the use of cannabis,’ but despite lamenting the injustices of marijuana convictions and the barriers they create, and despite the continuing collapse of public support for marijuana prohibition, Biden still opposes full-scale legalization. Instead, his administration has focused on mass pardons and other measures that largely leave those injustices in place… But even getting the DEA to acknowledge that marijuana is not a drug on par with LSD and heroin is a victory of sorts.

While encouraged by the DOJ action, Cynthia W. Roseberry, director of policy and government affairs at the ACLU’s Justice Division, cautioned, “The rescheduling does not end criminal penalties for marijuana or help the people currently serving sentences for marijuana offenses. It is time for the federal government to further reduce prosecution of marijuana and instead put more resources towards investments that help communities thrive.”

Associated Press, Justice Department formally moves to reclassify marijuana as a less dangerous drug in historic shift (May 16, 2024)

Reason, DEA Moves To Reclassify Marijuana as a Schedule III Drug (May 16, 2024)

ACLU, ACLU Applauds President Biden’s Announcement to Reclassify Marijuana, Calls for More Reform (May 16, 2024)

– Thomas L. Root

Hopes for Marijuana Criminal Justice Reform In This Congress May Be Dead – Update for December 6, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“REEFER MADNESS” AS SENATE DEMOCRATS SELL OUT ON POT CRIMINAL JUSTICE REFORM

reefer181210It turns out not to matter that voters want cannabis reform, or that the MORE Act has passed the House and probably could have passed the Senate by a filibuster-proof majority, or even that Senate Majority Leader Charles Schumer said just a few weeks ago that he was pushing for marijuana reform this year.

On Saturday, Axios broke the news that Schumer would bring the Secure and Fair Enforcement Banking Act (H.R. 1996) to a vote, giving up on comprehensive reform that included expungement of federal marijuana trafficking convictions. The compromise legislation does not legalize marijuana on a federal level, leaving pot as a Schedule I drug, like heroin and LSD.

The MORE Act (H.R. 3617) is dead. The replacement Cannabis Administration and Opportunity Act (S. 4591) – which also included retroactive expungement of federal marijuana convictions – also appears to be dead. The only measure that could include any criminal justice reform is the National Defense Authorization Act (H.R. 8900), which the House may use as a vehicle for drug criminal justice reform.

Instead, Democrats in the Senate will push to liberalize banking access to the cannabis industry. The SAFE Banking Act would provide a “safe harbor” for regulated banks to work with cannabis firms in states where cannabis is legal.

Schumer says he will “more than likely” attach the legislation to a must-pass year-end bill like the NDAA, which gets a vote annually. The House of Representatives attached the EQUAL Act (H.R. 1693) to the NDAA last July 19 with bipartisan support, but no one is talking about the Senate doing the same.

ironyalert220523Ironically, the Schumer package also reportedly includes the Harnessing Opportunities by Pursuing Expungement Act of 2021 (H.R. 6129), known as the HOPE Act. According to a bill summary, the measure “authorizes the DOJ to make grants to states and local governments to reduce the financial and administrative burden of expunging convictions for state cannabis offenses.” In other words, Congress will authorize money to help states expunge marijuana convictions, but it won’t lift a finger to expunge federal convictions.

Yesterday, House lawmakers delayed committee consideration of the NDAA amid disagreements over key issues. Democratic leaders had hoped to see the NDAA advance with marijuana reform provisions attached.

The House Rules Committee was expected to take up the NDAA on Monday, but Chairman Jim McGovern (D-MA) deferred consideration, saying the “package is not ready yet.”

Abandonment of cannabis criminal justice reform by the Senate Democrats – who torpedoed the MORE Act to begin when Sen Cory Booker (D-NJ), Sen Ron Wyden (D-OR) and Schumer introduced the alternative CAOA – came at the end of a week in which the New York Times criticized last month’s Biden mass pardon of people with marijuana simple possession convictions. The Times reported, “And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.”

warondrugs211028The Times observed that Biden was a “champion of aggressive drug laws earlier in his career, including the 1994 crime bill that led to mass incarceration,” although “he has more recently embraced leniency for those convicted of minor drug offenses.” Biden has said he does not support legalizing marijuana, “putting him at odds with 80% of self-described Democrats and 68% of Americans, according to a Gallup poll released this month,” The Times said.

The SAFE Banking Act is an incremental change in cannabis laws, being rolled out just as Marijuana Moment editorialized for taking such an approach. “It’s time to acknowledge that incrementalism is not selling out, it is not crumbs, and it is not failure,” the website said last week. “Failure is continuing to lock up our citizens while we quibble over who gets the spoils of a post-prohibition world.”

This leaves the Dept of Health and Human Services study rescheduling marijuana as the best hope for any change leading to sentencing reform. Last month, the National Law Journal reported that a panel of consulted legal experts estimated that marijuana will be rescheduled as a Schedule II or III drug by January 20, 2025.

Axios, Scoop: Senate plots pro-pot move for lame-duck (December 3, 2022)

Guardian, Senate Democrats to reportedly push banking reforms for cannabis industry (December 3, 2022)

Fox Business News, Senate aims to attach major marijuana legislation to end-of-year ‘must-pass’ bills: report (December 3, 2022)

Catholic News Agency, Bishops urge passage of bill that would give same sentences to crack and powder cocaine offenders (August 11, 2022)

Marijuana Moment, Democrats’ Focus On Social Justice Marijuana Bills Has Blocked Achievable Progress On Reform (December 2, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

Marijuana Moment, Fate Of Marijuana Banking Reform Uncertain As Lawmakers Delay Defense Bill Consideration Amid Disagreements (December 5, 2022)

– Thomas L. Root