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DOJ' s Child Migrant Solution: Throw Money at the Wind

50,000 children have fled their home countries and arrived in the U.S. since last fall. The number is expected to reach 90,000 by the end of the year. They are desperately in need of humanitarian aid. They should be treated as refugees from the violence in their home countries, not immigration violators. The U.S. should be providing them with asylum, not subjecting them to deportation.

What is DOJ's solution? Yesterday it announced a new policy. [More...]

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Recreational Pot Sales Begin In Washington State

Washington state opened its doors to recreational marijuana sales yesterday. There were long lines and very happy customers. James Lathrop, the owner of Cannibis City, came out at 9:00 a.m. with a big pair of scissors to cut the tape and said:

It's time to free the weed.

Among those who waited in line for hours:[More...]

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2013 Wiretap Report Released


On July 2, the Administrative Office of U.S. Courts released its annual statistical report on federal and state wiretaps for 2013. The report is here.

In a nutshell:

  • The number of federal and state wiretaps authorized in 2013 reached a ten year high -- there were 3,576.
  • Only 1 wiretap application was rejected, and that was by a state court. (Number of requests: 3577)
  • 87% of all wiretaps were for drug offenses.
  • Average cost of a federal wiretap: $43,361.

[More...]

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Sentencing Commission Holds Hearing on Retroactivity of New Drug Guidelines

The U.S. Sentencing Commission today held a hearing on whether to make the two point reduction in drug sentencing guidelines that becomes effective November 1, 2014 retroactive so that it applies to those already sentenced. The hearing agenda with witness statements is here.

The Justice Department, unfortunately, is asking the Commission for limited retroactivity. From its prepared testimony:[More...]

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DEA Threatens MA Medical Marijuana Doctors

Massachusetts enacted a medical marijuana law in 2012. Recently, shortly after the first licenses were approved, the DEA began visiting MA physicians associated with medical marijuana dispensaries and giving them a choice: Give up your DEA license to prescribe most medications, or give up your association with dispensaries.

The stark choice is necessary, the doctors said they were told, because of friction between federal law, which bans any use of marijuana, and state law, which voters changed in 2012 to allow medical use of the drug.

The DEA’s action has left some doctors, whose livelihoods depend on being able to offer patients pain medications and other drugs, with little option but to resign from the marijuana companies,where some held prominent positions.

The DEA gets progressively more out of step with the Department of Justice, Congress and state legislatures every day. Its budget is bloated and it desperately needs new leadership. DEA Director Michelle Leonhart, who presumably approves tactics such as these, should be asked to resign and a more enlightened director should be appointed to take her place. You can sign a Change.Org petition to remove her here.

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Huge Shift: FBI to Record Most Custodial Interrogations

Some very welcome news: The FBI's longstanding policy against recording interrogations of suspects will change in July.

Here is the May 12, 2014 memo sent to federal prosecutors and DOJ agencies by Deputy AG James Cole explaining the policy change. [More...]

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FBI May Loosen Hiring Policy on Marijuana Use

Congress has authorized 2,000 new hires for the FBI, and the FBI will be filling many of the positions with computer programmers and hackers in its fight against cybercrime. The problem, according to FBI Director James Comey, speaking yesterday at a white collar crime conference:

“I have to hire a great work force to compete with those cyber criminals and some of those kids want to smoke weed on the way to the interview,” Mr. Comey said.

Up until now, the FBI has asked applicants whether they have used marijuana within the past three years. Comey says the agency is changing "its mindset and the way we do business" and working more outside the box:

One conference goer asked Mr. Comey about a friend who had shied away from applying because of the policy. “He should go ahead and apply,” despite the marijuana use, Mr. Comey said.

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Al Jazeera America Series on U.S. Criminal Justice System

Al Jazeera America has just begun airing an 8 part series on the flaws in our criminal justice system. The first episode aired last night, and addressed coerced and false confessions. The remaining topics:

  • Episode 2: Mandatory Sentencing
  • Episode 3: Flawed Forensics (FBI Lab)
  • Episode 4: Eyewitness Identification
  • Episode 5: Parole
  • Episode 6: Juvenile Justice
  • Episode 7: Broken Windows: Policing Strategies
  • Episode 8: Prosecutorial Integrity

Reuters has more on the show here.

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House to Vote on Defunding Medical Marijuana Raids

It's that time of year again, when the House Appropriations Committee considers the annual DOJ budget. In the next several days, an amendment will be offered defunding medical marijuana raids in states with laws permitting use of medical marijuana.

Representatives Rohrabacher and Farr will be introducing an amendment to this measure to prevent any of the department’s funding from being used to interfere with medical marijuana programs in states that have approved them.

The amendment would prevent the Department of Justice from using taxpayer funds to interfere in state-sanctioned medical marijuana programs.

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Debunking Link Between Drug Crimes and Violence

Via Sentencing Law and Policy: Check out this new law review article by Law Professor Shima Baradaran. It debunks the link between drug crimes and violence.

[This article] demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is an important insight, because the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary.

In particular, the presumed connection between drugs and violence has reduced constitutional protections, misled government resources, and resulted in the unnecessary incarceration of a large proportion of non-violent Americans. In short, if drugs do not cause violence — and the empirical evidence discussed in this Article suggests they do not — then America needs to rethink its entire approach to drug policy.

[More...]

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DOJ Seeks Rule Change to Authorize Remote Hacking Searches

The Department of Justice is seeking approval for a change in the federal rule applicable to issuance of search warrants. DOJ wants U.S. Magistrate judges to be able, under Rule 41 of the Federal Rules of Criminal Procedure, to authorize computer searches even when they don't know the location of the computer or whether it's in that Magistrate's district. If the DOJ can access the computer remotely to search it, it doesn't want to be hamstrung by "technicalities" like which district the computer is in, or just as importantly, having to leave a physical notice at the site of the search.

The rule change has already passed its first hurdle and will come up again at a meeting of the committee later this month.

Here is the proposed new rule. Here are 5 pages from the 1100 page report describing the change and DOJ's justification for it (begins at bottom of first page). [More...]

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Report on America as a Prison Nation, More Criticism of War on Drugs

Human Rights Watch has a new report, A Nation Behind Bars, with facts on the current state of our prison nation and recommendations to reduce our over-reliance on incarceration.

Some facts:[More...]

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Why Innocent People Plead Guilty

U.S. District Court Judge Jed Rakoff of the Southern District of New York, who was both a federal prosecutor and a criminal defense lawyer before becoming a federal judge, recently gave a talk at the University of Southern California law school on why innocent people plead guilty.

“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

In a nutshell, the reasons many innocent people plead guilty are too much prosecutorial power (in charging decisions and plea agreements) and mandatory minimum sentencing laws.

“People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

The solutions, according to Judge Rakoff: Reduce prosecutorial discretion and eliminate mandatory minimums. I couldn't agree more.

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DOJ Announces Broadened Clemency Criteria for Drug Offenders

On Monday, the Justice Department announced it would soon be implementing new and broader criteria for drug offenders seeking clemency.

Today, the Justice Department announced the new criteria. It is a welcome sea change:

The Justice Department is encouraging nonviolent federal inmates who have behaved in prison, have no significant criminal history and have already served more than 10 years behind bars to apply for clemency, officials announced Wednesday.

The new criteria:

  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.

Thank you Obama Administration. This is what change looks like. [More...]

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President of Colombia: War on Drugs a Failure

Colombian President Juan Manuel Santos says the War on Drugs has failed and we need a new approach to drug trafficking.

In an interview on Monday with The Wall Street Journal, Mr. Santos noted a softening of hard-line antidrug policies both in the U.S. and in Latin America. He said the world had to develop more "realistic and pragmatic" ways to fight drug trafficking.

"How do I explain to a peasant in Colombia that I have to put him in prison for growing marijuana when in Colorado or in Washington state, it's legal to buy the same marijuana?" he said. "The world needs a more effective, fresher, more creative focus to win this war, because until now we haven't won, and the cost has been enormous."

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