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.

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.

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.

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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...]

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...]

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.

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...]

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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The House Homeland Security Committee held a hearing on "Taking Down the Cartels" this week. Predictably, several committee members called for the quick extradition of Joaquin "El Chapo" Guzman.

There were four witnesses at the hearing: James Dinkins, a director of Homeland Security Investigations for ICE; John Feeley, a deputy assistant secretary for Western Hemisphere Affairs at the State Dept; Alan Bersin, an assistant secretary of international affairs and diplomatic officer at Homeland Security; and Christopher Wilson, from the Mexico Institute of the Woodrow Wilson International Center for Scholars

I just read the transcript of the hearing (available on Lexis.com). A Republican from Georgia named Paul Broun really stood out -- and not in a positive way -- repeatedly referring to El Chapo as "an animal." Here are some of his remarks:[More...]

Attorney General Eric Holder testified today at a hearing of the U.S. Sentencing Commission on proposed amendments to the sentencing guidelines, one of which is to lower drug sentencing guidelines by two levels. He supports the change. Once approved by the Commission, unless Congress rejects the proposed amendments, it will go into effect Nov. 1. In a press release today, DOJ says:

Until then, the Justice Department will direct prosecutors not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing.

There are 216,000 federal inmates. The Bureau of Prisons says it is housing 173,661 of them. Of the 158,000, 98,554 are serving time for drug offenses. (The next biggest category is immigration offenders -- 20,862 inmates.)

FinCEN (the Financial Crimes Enforcement Network) and Department of Justice today issued new guidelines and a memo for banks doing business with marijuana businesses. The FINCEN press release is here.

The guidance provides that financial institutions can provide services to marijuana-related businesses in a manner consistent with their obligations to know their customers and to report possible criminal activity.

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Since the sad death of actor Philip Seymour Hoffman is still prominent in the news, bringing with it the predictable wave of hysteria over heroin use and clamors for more restrictions on pain pills, I will use the opportunity to point out the futility of using our criminal laws as a response to heroin addiction, and the origins of heroin. [More..]