The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction
34 Pages Posted: 29 May 2020
Date Written: April 3, 2020
While state drug law reform is moving apace, federal drug law reform has moved much more slowly. Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years. But Congress has not acted. As a result, the federal system continues to single out drug offenses for harsh treatment at the front end — the bail stage — and the back end — the sentencing stage — of a case.
This article examines the judiciary’s crucial role in federal drug law reform at the front and back ends of a drug case. On the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention in drug cases and giving little, if any, weight to the Bail Reform Act’s presumption of detention at the detention hearing stage. Data shows that the drug presumption is over-broad and does a poor job of determining who is a risk of flight or a danger to the community. At the back end, judges should issue categorical policy disagreements with the drug sentencing guideline and the career offender sentencing guideline under the Supreme Court’s rationale in Kimbrough v. United States. These guidelines are not based on empirical evidence and national experience, and therefore do not exemplify the Sentencing Commission’s “exercise of its characteristic institutional role.” At both ends, judges should emphasize the evidence that the drug presumption, the drug sentencing guideline, and the career offender sentencing guideline are flawed. While these actions are not a cure for Congress’ inaction, they send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.
Keywords: Drug Law, War on Drugs, Bail, Bail Reform, Sentencing, Sentencing Guidelines
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