By Joanna R. Lampe

Federal law generally prohibits the production, distribution, and possession of marijuana for both medical
and recreational purposes. In April 2024, news outlets reported that the Drug Enforcement Administration
(DEA) planned to change the status of marijuana under the Controlled Substances Act (CSA) by moving
it from Schedule I to the less restrictive Schedule III. Such a move would relax some controls over
marijuana but would not immediately legalize medical or recreational use of marijuana under the CSA.
Notwithstanding the strict federal control of marijuana, in recent years, many states have repealed state
law criminal prohibitions on some marijuana-related activities, and medical and recreational cannabis
businesses now operate openly in some parts of the United States.
In response to the disparity between state and federal law, Congress has enacted appropriations legislation
prohibiting the Department of Justice (DOJ) from expending appropriated funds to prevent states from
implementing their own medical marijuana laws. Federal courts have interpreted the appropriations rider
to prohibit DOJ from bringing criminal drug prosecutions against certain persons and entities involved in
the state-legal medical marijuana industry, but they have differed as to the scope of conduct the rider
shields from prosecution.
This Legal Sidebar first outlines the legal status of marijuana under federal and state law. It then discusses
the medical marijuana appropriations rider and analyzes how federal courts have interpreted the
provision. The Sidebar closes with key considerations for Congress related to the appropriations rider and
the disparity between federal and state marijuana policy more generally.
Federal and State Marijuana Regulation
The plant Cannabis sativa L. and products derived from that plant have a number of uses and may be
subject to several overlapping legal regimes. In recent years, a significant divide has developed between
federal and state marijuana laws. On the federal side, the CSA imposes stringent regulations on the
cannabis plant and many of its derivatives. Activities involving controlled substances not authorized
under the CSA are federal crimes that may give rise to large fines and significant prison sentences.
Unless an exception applies, the CSA classifies cannabis and its derivatives as marijuana. Congress
classified marijuana as a Schedule I controlled substance when it enacted the CSA, reflecting a legislative

Washington, DC: Congressional Research Service, 2024. 5p.

By Megan Comfort, Jenn Rineer, Elizabeth Tibaduiza, and Monica Sheppard

The “pretrial process” refers to the events that happen between the time that one is suspected by law enforcement of violating the law and the time that charges are dismissed, the case is otherwise resolved, or the trial process begins. During the pretrial period, people are considered innocent under the law. The U.S. Supreme Court1 has stated, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The only two constitutionally valid reasons for holding someone in jail during the pretrial period are (1) to prevent flight or (2) to prevent harm to people in the community. Judges make decisions every day about whether to detain or release people going through the pretrial process, as well as about what conditions of release may be needed to help people succeed. Pretrial release assessments are designed to inform their decisions. Unlike assessments that involve a clinician or other professional drawing on their subjective expertise to make a recommendation, actuarial pretrial release assessmentsa rely on mathematical processes. Using large data sets with information about people who previously went through the pretrial process, researchers identify factors related to appearing for court hearings and not being arrested again if released. The researchers then create a sequence of instructions for a computer to follow (called an algorithm) that uses these factors to calculate an estimated likelihood that a person will appear in court and remain arrest free while their case is being resolved. This calculation—referred to as a “score”—is provided to the judge as information to consider when making decisions about pretrial release. A person’s score is also often provided as information to other courtroom actors, such as prosecutors, defense attorneys, and pretrial services officers. When thinking about actuarial pretrial release assessments, it is important to understand the history of the criminal legal system in the United States, which is deeply rooted in the legacy of slavery. Read Race and the Criminal Justice System2 by the Equal Justice Initiative to learn more. No actuarial pretrial release assessment tool or instrument is considered standard. Numerous assessments have been developed, and they vary in terms of the factors and instructions entered in the algorithm. Some use factors that are available through criminal legal system records, such as whether someone has been arrested before or has previously missed a court date. Others include factors like whether someone has a job, is enrolled in a substance use treatment program, or has a place to live. This information is usually obtained by talking with the person who has been arrested. At the time of this writing, pretrial release assessments use algorithms that are created by humans as opposed to ones that are generated by machine learning or artificial intelligence (AI). It is possible that future assessments will rely on AI, which would raise a different set of issues to consider. The use of actuarial pretrial release assessments is growing across the United States. Often, they are an element of broader system change aimed at reducing or eliminating the use of cash bonds, which require people to post money to be released from jail. Judges may consider the actuarial pretrial release assessment score when deciding what conditions of release—for instance, electronic monitoring or mandatory check-ins with pretrial services—are appropriate for a person. In systems that retain money bond as a potential release condition, assessments are sometimes used to inform decisions about bond amounts, but the impact on release is lessened if people remain in jail because they cannot afford to pay their way out. Judges may also use the score as part of their decision about whether to keep someone in jail or release them while their case is pending

APPR Research Brief, April 2024. Research Triangle Park, NC: RTI International, 2024. 5p.

Edited by Murdoch Watney

The chapters in this volume focus on the future of law and related disciplines: human rights and access to medical care, corruption and money laundering in state procurement, counterfeit medical products, IPR waiver on COVID-19 vaccines, emergency powers, freedom of expression, prison healthcare, the impact on labour law, access to courts and digital court processes, access to education and the impact on insurance law are but a few possible topics which are addressed.

Johannesburg, UJ Press, 2022. 288p.

By American Bar Association Working Group on Building Public Trust in the American Justice System

Released in June 2020, this Report provides a comprehensive overview of the role private companies play throughout the criminal justice system and how the use of these private companies impacts low-income individuals moving through the system. The Report summarizes research done by other entities, academics, journalists, and activists on specific aspects of privatization. The organization of the report tracks the sequence of a typical accused individual's experiences in the criminal justice system following arrest, demonstrating how costs compound as the individual moves through the system.

The Report acknowledges that courts and other government entities sometimes need to import expertise they lack, but it urges governments to recognize how low-income individuals too often can be relentlessly ensnared in the criminal justice system, not because they engage in ongoing criminal activity, but because they cannot pay the debts imposed by the system itself. Too often, by hiring private companies to handle what were previously governmental functions in the criminal justice system, government agencies exacerbate the cycle of mandatory fees, nonpayment, and consequent additional fees. Far too frequently, government authorities allow private companies to operate in the criminal justice system with little or no oversight and to charge fees untethered to actual costs.

The Report urges the ABA to adopt specific policy on the privatization of services in the criminal justice system, as well as to promote the policies, already in existence, calling for careful limitations on fines and fees.

Chicago: ABA, 2020. 36p.

By The Philadelphia District Attorney's Office, Data Lab

The Conviction Integrity Unit (“CIU”) was established in 2018 by District Attorney Larry Krasner. The CIU’s predecessor, the Conviction Review Unit (“CRU”), which was established in 2014, had operated for a number of years with only a small staff and a narrow mandate. The CRU only reviewed claims of actual innocence, and rarely undertook investigations into whether new evidence existed that could prove those claims. Cases where the defendant had confessed were largely excluded from consideration, as if false confessions (which occur in a quarter of DNA exonerations nationally) were always reliable. Today, the CIU is an independent unit within the Philadelphia District Attorney’s Office, reporting directly to the District Attorney, and involved in one out of every ten homicide exonerations in the country. When District Attorney Krasner transformed the unit from the CRU to the CIU, he immediately tasked it with a broader mandate: not only to review past convictions for credible claims of actual innocence but also to review claims of wrongful conviction and secondarily to consider sentencing inequities. Early in his first term, District Attorney Krasner merged the CIU with the Office’s Special Investigations Unit (“SIU”). The two units share a common focus on investigating official misconduct, and their cases frequently overlap. However, as the CIU and SIU personnel have grown and expanded their caseloads, the units were separated in the summer of 2020 to better accommodate each unit’s mission

The CIU’s mission is to ensure that justice is served by prosecutors at the Philadelphia District Attorney’s Office and to remedy the Office’s wrongful convictions. Pennsylvania prosecutors have limited post-con viction discretion in general and they have no legal authority to set aside convictions in the interest of justice. Since CIU prosecutors cannot unilaterally dismiss an existing conviction or free anyone we believe to be wrongfully incarcerated, the CIU makes a recommendation to the court that the petitioner be granted a new trial whenever its independent investigation leads it to conclude that a conviction lacks integrity. If warranted, the CIU will move to withdraw the charges against the petitioner or reduce the charges so that an equitable sentence can be imposed. In cases that are ultimately withdrawn or dismissed, the CIU will investigate and prosecute the actual perpetrator where feasible. However, given the inherent difficulties involved in investigating decades-old crimes where the original investigation was either botched or inadequate, identifying the real perpetrator and bringing that person to justice may be impossible. To date, the Philadelphia Police Department has declined to re-open and re-investigate old cases following exonerations. For example, Walter Ogrod was exonerated of a 1988 murder in 2020. While investigating the case, the CIU identified two alternate suspects. As of almost a year after Ogrod’s exoneration, however, police had not even begun the process of re-opening the underlying murder case. Additionally, the CIU believes that conviction integrity is more than simply fixing past mistakes and exposing misconduct. It also requires policies and processes to prevent future injustices. With this aim, the CIU helps craft office-wide policies and trainings designed to reduce the number of future wrongful convictions.

This report encompasses exonerations, commutations, and sentencing adjustments from January 1, 2018 through June 15, 2021. This report includes data on cases submitted to the CIU, active investigations, cases declined or closed, and cases awaiting review that are accurate as of May 31, 2021. Experts who have opined on the issue of best practices for conviction integrity units agree that in order to increase public understanding of and trust in such units, offices should publish annual reports detailing the results of their conviction and case reviews and actions taken. This report is the first report issued by the CIU under District Attorney Krasner and is a first-term report, rather than an annual report. Although annual reports were contemplated, they were postponed as a result of multiple factors ,including lack of resources, internal technology deficits, case load, and the COVID-19 pandemic.

Philadelphia District Attorney's Office, Data Lab. 2021. 47p.

By Kuc, Oktawian

Recent decades have brought international and municipal courts much closer together and induced meaningful cooperation. This holds true also for the International Court of Justice and domestic judicial institutions as they engage actively in an inter-judicial dialogue, particularly on the normative level. Due to the impact of globalisation and internationalisation, the World Court has expanded its jurisprudence to also accommodate references and analysis of external judicial organs and their pronouncements. Likewise, ICJ decisions are referred to and consulted by municipal courts as authoritative statements of international norms or assistance in fact determination. This monograph examines this inter-judicial dialogue in a comprehensive manner by identifying and analysing all its aspects as evidenced in respective jurisprudence. Surprisingly, the mutual conversation in judicial decisions between the World Court and national judicial institutions has drawn little attention from international legal scholarship, and the book is designed to fill this lacuna.

New York; London: Routledge, 2022.

By Rebecca Tiger

The number of people incarcerated in the U.S. now exceeds 2.3 million, due in part to the increasing criminalization of drug use: over 25% of people incarcerated in jails and prisons are there for drug offenses. Judging Addicts examines this increased criminalization of drugs and the medicalization of addiction in the U.S. by focusing on drug courts, where defendants are sent to drug treatment instead of prison. Rebecca Tiger explores how advocates of these courts make their case for what they call “enlightened coercion,” detailing how they use medical theories of addiction to justify increased criminal justice oversight of defendants who, through this process, are defined as both “sick” and “bad.” Tiger shows how these courts fuse punitive and therapeutic approaches to drug use in the name of a “progressive” and “enlightened” approach to addiction. She critiques the medicalization of drug users, showing how the disease designation can complement, rather than contradict, punitive approaches, demonstrating that these courts are neither unprecedented nor unique, and that they contain great potential to expand punitive control over drug users. Tiger argues that the medicalization of addiction has done little to stem the punishment of drug users because of a key conceptual overlap in the medical and punitive approaches—that habitual drug use is a problem that needs to be fixed through sobriety. Judging Addicts presses policymakers to implement humane responses to persistent substance use that remove its control entirely from the criminal justice system and ultimately explores the nature of crime and punishment in the U.S. today.

New York; London: NYU Press,  2012

By Fred Butcher, Amanda B. Cissner, and Michael Rempel

  Mandatory minimum sentencing laws gained traction in the late 1970s and early 1980s amidst rising crime rates, a “tough-on-crime” push, and punitive enforcement related to the “War on Drugs.”. Under mandatory minimums, individuals receive a stipulated amount of prison time, with no accounting for the circumstances of the offense or the characteristics of the person charged. As minimums typically flow from the charge and a person’s criminal history, they confer outsized power on prosecutors; in plea negotiations, prosecutors can wield the threat of a higher charge with a minimum for someone hesitant to accept a plea. Judges also lose discretion, and defense attorneys lose opportunities to present mitigating circumstances. In 1984, the federal Sentencing Reform Act established the U.S. Sentencing Commission, requiring that federal courts impose sentences within a range specified by the Commission and eliminating parole for federal charges. Many states took their cue from federal efforts, introducing minimum sentences and restricting the ability of parole boards to reduce sentences through good-time or earned-time credits. Proponents viewed sentencing guidelines (including mandatory prison) as a limit on judicial discretion and a means to eliminate disparities in sentencing. They touted the idea of “truth in-sentencing”—giving people charged, crime survivors, and the public an accurate idea of how much time those sentenced would actually serve. Minimums also arose in response to the perception—ginned up at the time and since debunked—that the more rehabilitative approach of the 1960s had failed to tamp down crime rates and recidivism. Recent decades, however, have seen mandatory minimums fall into disrepute. Several decades of harsh sentencing policies contributed to the astronomical growth of the U.S. prison population, which peaked at 1.6 million people held on an average day in 2009, a total which omits about 750,000 additional people held in local jails that year. The rapid consolidation of mass incarceration over these decades did not increase safety; evidence points instead to a modest increase in recidivism among individuals subject to custodial sanctions. Similarly, mandatory minimums and other sentencing laws passed in the 1970s and 1980s increased (and here more than modestly) persistent racial disparities in the criminal legal system. Black Americans today continue to be disproportionately represented in prison populations and are more likely to be charged with offenses subject to mandatory minimums—leading to longer sentences—than white Americans.8 According to the most recent analysis by the U.S. Bureau of Justice Statistics, among those detained in prisons nationwide, there were nearly identical Black and white populations (34% vs. 32%). Considering their representation in the general population, Black people are imprisoned at a rate five times greater than white people. Over the past two decades, numerous states, including New York, have weakened or eliminated mandatory minimum sentencing laws.10 Many of these reforms focused on eliminating minimums that apply primarily to drug offenses. This narrow focus has neglected much of the imprisoned population, as drug offenders make up a small percentage of those in prison. In 2022, the Vera Institute of Justice estimated just over half of New York’s approximately 300,000 prison sentences were the result of mandatory minimum sentencing laws. Declaring the laws “morally and fiscally unsustainable,” the organization called for their abolition.

New York: Center for Justice Innovation. 2022, 31pg