Boston and Baltimore’s non-prosecution policies are now at grave risk

Two of the most significant figures in the so-called “progressive prosecutor” movement now seem to be off the table as local top prosecutors. Despite very different circumstances in Baltimore and Boston, where they each presided over groundbreaking non-prosecution policies, these developments should concern anyone who wants to see drug use decriminalized.

In Baltimore, the elected top prosecutor, State’s Attorney Marilyn Mosby, issued a broad non-prosecution policy for drug possession, drug paraphernalia and “prostitution” charges in March 2020, as the COVID-19 pandemic kicked in. She announced her intention to maintain the policy post-pandemic, and a 2021 Johns Hopkins University study found that it had averted many arrests without reducing public safety.

But Mosby just got federally indicted on two perjury counts and two counts of making a false statement on a mortgage loan application. The charges are related to Mosby’s alleged claims of financial hardship during the COVID-19 pandemic, as well as allegedly fraudulent real estate dealings.

Whether Mosby will resign, either willfully or by force, is not presently known. David Jaros, a University of Baltimore law professor, told a local news station that under Maryland law, Mosby “can be removed from her position if the attorney general files a petition and two thirds of the Senate vote to remove her.”

In Boston meanwhile, Rachael Rollins, who until recently was Suffolk County’s district attorney, has now become the US attorney of Massachusetts instead, after the state Senate confirmed the Biden administration’s pick. As DA, Rollins had made progress on her campaign pledge to default to non-prosecution for 14 low-level misdemeanors.

That switch meant that Governor Charlie Baker, a Republican whose administration was highly critical of Rollins’ policies, got to nominate a successor to hold the Suffolk County DA seat until the November 2022 election. He chose Kevin Hayden, a prosecutor with a more middle-of-the-road track record, as Rollins’ replacement.

Despite a National Bureau of Economic Research study confirming that Rollins’ non-prosecution policies decreased justice involvement without increasing local crime rates, whether they will be continued by the new administration is an open question.

Several insiders, speaking to Filter on condition of anonymity, suggested that Hayden himself does not know yet what he plans to do regarding Rollins’ declination policies. One suggested that Hayden plans to keep the policies in place, while cautioning that actions speak louder than words.

On the other hand, Hayden may already be showing why he was Gov. Baker’s pick. Bobby Constantino, who served in the key role of Suffolk County director of innovation and strategy in the Rollins administration, tweeted on January 13: “For those who are wondering how the transition is going, they reassigned my office yesterday without so much as a warning, and despite several requests to meet with the new team, they are forcing me to resign before I can hand off the office’s research and tech portfolio.”

Unlike in Massachusetts, Maryland top local prosecutors who for whatever reason don’t complete their terms are replaced by Circuit Court judges—who themselves are elected to 15-year terms. This has happened at least once before in Baltimore, back in the 1970s, when the Circuit Court bench elected Howard Cardin as state’s attorney in order to fill a vacancy.

However, that appointment was controversial—the bench’s chief judge was Meyer Cardin, Howard’s father—and the new state’s attorney was defeated in the next election cycle.

The timing of Mosby’s indictment makes things even more complicated, as the filing deadline for the June 2022 state’s attorney primary is only weeks away. No one has officially filed yet, though Mosby, as well as attorneys Ivan Bates and Roya Hanna, had expressed plans to do so.

Her indictment does not legally stop Mosby from running, even if her prospects for winning would now be slim. But if she won and was then sentenced to prison due to a conviction, an interim state’s attorney would have to be selected by the judges.

Alternatively, Mosby could resign, triggering the judges’ need to appoint a replacement immediately. It is unclear how long that process might take, and thus whether that person would be able to run in the primary with incumbency advantage.

However, Jaros told Filter that if it came to that, he would be surprised if the judges appointed someone who would radically alter the non-prosecution status quo.

“I think the more likely and smarter play by the judges would be to choose someone who is currently in the office who will serve as a caretaker of the office’s work as the election plays out,” the professor said, “rather than stepping in to anoint a successor who is not currently there.”

Still, it is entirely possible that a change of guard, aided by the political ammunition the indictment provides, will ultimately mean a reversal of Mosby’s non-prosecution policies toward drugs and sex work.

If Mosby’s exit is confirmed alongside that of Rollins, it would be rather devastating to the progressive prosecutor movement nationally, which is already in a tough spot. Progressive district attorneys in Los Angeles and San Francisco face recall battles this year, while the new state attorney general of Virginia, Jason Miyares, was elected after engaging in scorched-earth political warfare against progressive prosecutors. The safest progressive DA seat is undeniably Philadelphia DA Larry Krasner’s, since he won re-election in 2021 by a large margin against both primary and general election challengers.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

New Manhattan prosecutor sparks a right-wing backlash — but the critics don't understand the reality

On the campaign trail for Manhattan district attorney in 2021, Alvin Bragg was seen by many observers as unlikely to deliver on the reforms he promised. Now that he has been sworn in, he is already planning big moves that could revolutionize the system—unless it destroys him first.

In a memorandum published January 3, DA Bragg states to line prosecutors working under him that they will no longer prosecute “marijuana misdemeanors,” most trespassing charges, turnstile jumping, most resisting arrest charges, and more. “Prostitution” is not specifically named, but a prosecutor must ask a supervisor before charging a client with patronizing. For felonies that are not homicides, high-grade felonies involving serious physical injury with a weapon, most sex offenses, felony domestic violence or major economic crimes, the new default policy is for prosecutors to “not seek a carceral sentence.” The memo also tells line prosecutors that they “shall not seek a sentence of life without parole,” at least under most ordinary circumstances.

Bragg additionally ordered that Manhattan prosecutors should seek to downgrade certain serious charges if mitigating factors are present. For example, a robbery suspect who threatens a clerk with a fake weapon will face larceny charges, not armed robbery charges, so long as no one was hurt and there was no “genuine risk of physical harm.”

This all makes sense in a system that has long abandoned rehabilitation as a genuine goal while failing to demonstrate effective deterrence. Recognizing this, when the elite American Law Institute sought to revise the sentencing provisions of its Model Penal Code, it stated its goal as “limiting retributivism,” nothing less or more. If no one was actually hurt, any legal consequences should be about deterring or incapacitating the person who did the crime, it held—revenge is simply inapplicable.

New York City criminal justice practices get more attention than those of any other city, and have often spread as a model for the rest of the nation. So it did not take long for some of the usual rightwing critics of decarceration to find their soapbox.

Political commentator David French wrote that “This is an extraordinary assertion of prosecutorial authority that’s inconsistent with the rule of law. There’s a difference between prosecutorial discretion (which is already routinely abused) and the wholesale usurpation of the criminal code.” A critical tweet from Peter Moskos, a John Jay College of Criminal Justice professor who once advocated the introduction of flogging as an alternative to incarceration, was retweeted by Donald Trump, Jr. The former president’s son responded, “As if New York wasn’t already doing everything in its power to push people to Florida.”

However, several other commentators recognized that Bragg’s announcement is not as radical as it seems on first blush. For example, while Bragg announced that his prosecutors are expected to request “non-carceral” sentences for most crimes, more serious felonies in New York will still require at least a year of prison time. Considering this, and the memo’s numerous exceptions to ensure the office abides by state law—for example, the non-carceral sentence recommendation piece applies “unless required by law”—Fordham Law Professor John Pfaff said, “This isn’t the ‘jailbreak’ critics are relatively claiming it to be.”

There is also the inconvenient issue of local judges. Judges in New York are elected. With rare exceptions, cities have not seen a “progressive judge” movement to match the “progressive prosecutor” movement. Judges ultimately decide how to sentence cases, and there is evidence they disagree with reform prosecutors much more than they do with traditional “tough-on-crime” prosecutors. Judges also have to sign off on plea bargains to lesser charges, and they may not do so if they think the arrangement is too lenient.

So how much Bragg’s memo translates to actual decreases in the number of Manhattan residents sent to the Rikers Island jail or an upstate prison remains to be seen. Implementation is also likely to present a number of challenges. For example, Bragg’s plans to downgrade certain charges and recommend lower sentences for others may place a greater burden on probation and parole officials, when some people who would usually go to prison will now be put on probation. And figuring out how to reduce incarceration and (unnecessary) court supervision without risking further harms to victims—which would be both inherently bad and politically dangerous for the decarceration project—will take careful analytical work that has not really been done before. This may help to explain why other progressive DAs have largely resisted reforming criminal-legal responses to more serious crimes—beyond obvious or perceived political barriers.

Interestingly, Bragg simultaneously seems to be listening to the local victims’ rights community, which charged that his predecessor, DA Cy Vance, did not take sexual assault and related crimes seriously enough. Bragg told his prosecutors were told that sex crimes involving physical contact are not eligible for the blanket non-carceral sentence recommendation.

Yet that also may create some arguably bizarre results. For example, a 21-year-old who has sex with a 16-year-old girlfriend can be charged with a felony carrying a maximum of four years in prison. So long as there is no “serious” injury, Bragg’s prosecutors will seemingly both argue that the person convicted of armed robbery, a felony that carries up to 25 years in prison under state law, deserves no prison time, while that 21-year-old deserves up to four years behind bars, in addition to the civic death of the sex offender registry, for an act that is not a crime in several surrounding states.

Yet for all the caveats, Alvin Bragg’s announcement carries great significance. We are officially in new territory with a man who has already shown himself willing to go further toward a downsized criminal justice system, at least in theory, than any district attorney before him. Whether he is all talk, all-action or something in between, we’ll soon find out.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

San Francisco mayor ramps up aggressive policing after city is targeted by right-wing media

Declaring that “We need to take back our Tenderloin,” a hip, mixed-income neighborhood in San Francisco with a large unhoused population, Mayor London Breed announced a new plan in a Medium blog post on December 15.

Its focus is on “interrupting” open-air drug sales and public drug use. Interrupting refers to making arrests, as Breed acknowledged by citing a recent felony arrest warrant sweep. Only after that will social service providers “work in concert” with the police for the second phase of her plan.

Using rhetoric that harkens back to the heyday of the War on Drugs, Breed wrote that police “will continue targeting the criminals—the drug dealers—who prey on people struggling with addiction and poverty and other issues.”

Ignoring the harms and racial injustice inherent to such crackdowns, Breed even acknowledged that ramping up policing will cost more money. In bold letters, she wrote that “we will need a budget supplemental to help fund SFPD overtime.” She stated that she plans to introduce that request in January 2022.

These proposed policies may surprise some people who live in other parts of the United States. San Francisco is widely seen as the nation’s most progressive city—decidedly not a city governed by centrist Democrats. But that common view from non-locals does not describe the politics on the ground.

It is notable that Mayor Breed’s announcement comes on the heels of national publicity for the recall against the San Francisco’s top law enforcement officer, reformist District Attorney Chesa Boudin.

While Boudin’s policies of reducing prosecutions seem little different to those embraced in cities as diverse as Baltimore, Boston and Tucson, his tenure has attracted exceptionally vitriolic criticism from segments of the community. Some of this has been fueled by national-level conservative media, which frequently ties the DA to his parents’ Weather Underground convictions.

John Hamasaki, a reform-minded member of the San Francisco Police Commission who was appointed by the Board of Supervisors in 2018, is skeptical of Breed’s plan. He attributed the change to the mayor, too, feeling the heat from what he characterized as right-wing recalls and the targeting of San Francisco by media outlets like Fox News.

“We all know that substance use, mental health, and homelessness are not policing matters,” he told Filter. “We can address crime, while requiring the proper non-police professionals to address poverty, mental health, or substance use.”

While some have called Breed progressive, her record has been complicated since she first got into politics. Breed served as a member of the city’s Board of Supervisors from 2013 until 2017, where she was pointedly accused of standing with real estate developers over local residents struggling with poverty. She also developed an antagonistic relationship with the press, calling one significant media outlet a “bullshit ass blog” because she was upset by some of its coverage.

In late 2017, former mayor Ed Lee unexpectedly died, and Breed was appointed acting mayor. During the weeks leading up to the June 2018 special mayoral election which saw Breed elected to the office, city residents received letters from George Shultz, a Republican superstar who served on the presidential cabinets of Richard Nixon and Ronald Reagan. One of Breed’s staffers also attempted to garner a second-choice endorsement from the Republican Party Central Committee after the local Democratic Party refused to endorse her, selecting Supervisor Jane Kim instead. (San Francisco has ranked-choice voting, and the mayoral seat is nominally nonpartisan.)

As mayor, Breed has repeatedly shown herself to believe more policing and prosecution is the solution to myriad social issues her city faces.

In 2020, a public records request suggested that the mayor used the police department as her personal anti-homelessness squad. “Man sleeping on bench on Hayes st near gough,” Breed texted the police chief, Bill Scott. “Can someone come ASAP. I’m in the area having lunch.”

That same year, when activists holding Black Lives Matter signs came to her house to protest her inaction on more ambitious police reforms, she denounced them as “all white” and even compared them to the Ku Klux Klan.

And back in 2019, when former San Francisco DA George Gascón announced that he would retire from the seat a month early, Breed appointed Suzy Loftus, an old-guard prosecutor who made a crackdown on property crimes the cornerstone of her subsequent election campaign, as his replacement.

Tucked away in Breed’s latest announcement was a pledge to reverse the city’s pioneering stance on new surveillance technologies that undermine residents’ right to privacy. In 2019, the San Francisco Board of Supervisors voted 8-1 to largely ban facial recognition technology by law enforcement. That move was seen as having particular salience since it came out of a city often defined by tech growth.

The mayor claimed that this policy “hobbled law enforcement when confronting life-threatening incidents like active shooters, suspected terrorist events, hostage taking, kidnapping, natural disasters, or looting.” She did not provide evidence or examples.

Shahid Buttar, an attorney who worked as the Electronic Frontier Foundation’s director of grassroots advocacy, was one of many advocates who successfully pushed for the city’s groundbreaking ordinance. He told Filter that this claim was “disinformation from the mayor, parroting police talking points in order to insulate the police-industrial corruption from civilian oversight.”

Mayor Breed’s office declined Filter’s request for comment.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

How Oregon is turning the page on America’s disastrous drug war

In a groundbreaking move, in 2020, Oregon voters approved the decriminalization of personal use amounts of all illicit drugs, with Measure 110 passing with a healthy 59 percent of the vote. That made Oregon the first state in the U.S. to make this dramatic break after decades of the war on drugs. Now, as other states are pondering a similar move and are looking for evidence to bolster their case for drug decriminalization, some of the initial results in Oregon are looking pretty impressive and promising.

Measure 110 promised not only thousands of fewer drug arrests but also a move away from a punitive system to a more compassionate one, with hundreds of millions of dollars for “greatly [expanded] access to evidence-informed drug treatment, peer support, housing, and harm reduction services, without raising taxes,” according to a November 2020 press release from the Drug Policy Alliance (DPA). These services would be funded through “excess marijuana tax revenue” (more than $45 million) and savings accrued “from no longer arresting, incarcerating, and prosecuting people for drug possession,” said the press release. State analysts in June 2020 estimated the excess marijuana tax revenue alone would result in more than $100 million in funding for providing services in the first year, after the implementation of Measure 110—which went into effect in February 2021—and would further result in funding of up to $129 million by 2027.

The state analysts were, however, too cautious. On November 3—“the one-year anniversary of the passage of Measure 110”—the DPA, whose political action arm, Drug Policy Action, spearheaded the successful campaign to get the drug reform measure passed, and the Health Justice Recovery Alliance (HJRA), the DPA’s key implementation partner in the state—which is working to implement treatment, harm reduction, and support programs—announced that they had secured funding of $302 million “for services over the next two years.” That’s more than $150 million a year, the DPA press release announced, “including $30 million lawmakers agreed to release ahead of schedule in May of [2021].” It is also “five times more than what Oregon currently spends on non-Medicaid funding for addiction services,” according to HJRA.

On November 17, that funding got real, with the Measure 110 Oversight and Accountability Council announcing the opening of a grant proposal period to distribute $270 million of the funding to service providers, who will operate under the rubric of the new Behavioral Health Resource Networks (BHRNs). Grants will be going to groups working on a broad spectrum of substance-related concerns, including housing, peer support, and employment support, as well as harm reduction and drug treatment services.

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“Our vision is that by funding BHRNs, there will be a collaboration of networks that include culturally and linguistically specific and responsive, trauma-informed and gender affirming care that will meet the needs of anyone seeking services who have been negatively affected by substance use and the war on drugs,” said Oversight and Accountability Tri-Chair LaKeesha Dumas in a press release by the Oregon Health Authority announcing the grants.

That initial round of grants went to 70 organizations in 26 out of the state’s 36 counties, with these results cited in a DPA press release on November 3:

  • “33 harm reduction and addiction recovery service providers expanded access to treatment services for indigent, uninsured individuals.”
  • “52 organizations hired peer support specialists—a role that addiction medicine experts have long heralded as essential to one’s recovery journey.”
  • “32 service providers added recovery, supportive and transitional housing services.”
  • “30 organizations increased harm reduction services, which include life-saving interventions like overdose prevention; access to naloxone, methadone and buprenorphine; as well as drug education and outreach.”

“We were about to have to close our doors in Wasco County, which would have been devastating to the people that depend on us for support there, but thanks to Measure 110 passing, we were not only able to get the funding we needed to stay open, but also to expand the services and spectrum of care we were able to provide our clients,” said Monta Knudson, executive director of Bridges to Change, a nonprofit that offers peer recovery support, housing and treatment services in Oregon, in the November 3 DPA press release.

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“Addiction has touched us all somehow, some more personally and heartbreakingly than others,” said Tera Hurst, executive director of the Health Justice Recovery Alliance, in the DPA press release. “Too many of us have lost loved ones to addiction, or struggled with it ourselves. COVID-19 has made things much worse, decreasing access to care during a time when Oregonians need these services more than ever before. That’s why today, exactly one year after the Measure’s passage, we celebrate the great strides made when it comes to addressing Oregon’s addiction crisis, while recognizing that there’s still much work to be done. Our immediate focus is to ensure every Oregonian knows these critical harm reduction and recovery services are being invested in and expanded so that they will be available to anyone who wants and needs them, and that they can feel comfortable and safe accessing them.”

But while the huge expansion of treatment, harm reduction, and related social services is undeniably a good thing, drug decriminalization is ultimately about getting people out of the criminal justice system and ensuring that they are not sucked into it in the first place. It’s looking like Measure 110 is achieving that goal.

According to the Oregon Criminal Justice Commission, there were roughly between 9,000 and 10,000 drug arrests per year from 2012 to 2018, prior to the passage of Measure 110, and while it is too early to have precise numbers, thousands of Oregonians who would have been arrested for drug possession in 2021 have instead faced only their choice of a $100 fine or a health assessment. This doesn’t mean that there will be no arrests at all, though, because some felony drug possession arrests (possession of more than the specified personal use amounts) have been downgraded to still arrestable misdemeanors. There will, however, be thousands fewer people subjected to the tender mercies of the criminal justice system and all the negative consequences that brings.

Preliminary numbers reported by the Oregonian suggest that drug arrests in 2021 are occurring at a rate of about 200 a month, primarily for possessing more than a personal use quantity of a drug. If that rate holds throughout the year, we should see a dramatic reduction in overall arrests, down from 9,000 (in the latest-reported 2018 data from the Oregon Criminal Justice Commission) to fewer than 2,500. And most of the people being arrested are now facing misdemeanors instead of felony charges.

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“A year ago, Oregonians voted yes on Measure 110 to remove criminal penalties for possession of drugs and expand access to health services. Now, because of this measure, there are thousands of people in Oregon that will never have to experience the devastating life-long barriers of having a drug arrest on their record, which disproportionately and unjustly affected Black and Indigenous people due to targeted policing,” said DPA Executive Director Kassandra Frederique in the press release. “Because of this measure, there is more than $300 million in funding that did not exist before being funneled into community organizations to provide adequate and culturally competent care that people desperately need. And while the devastation of 50 years of cruel and counterproductive policies can’t be erased overnight, by all metrics we hoped to achieve, and what voters asked for, we are going down the right path.”

Phillip Smith is a writing fellow and the editor and chief correspondent of Drug Reporter, a project of the Independent Media Institute. He has been a drug policy journalist for more than two decades. He is the longtime writer and editor of the Drug War Chronicle, the online publication of the nonprofit Stop the Drug War, and was the editor of AlterNet’s coverage of drug policy from 2015 to 2018. He was awarded the Drug Policy Alliance’s Edwin M. Brecher Award for Excellence in Media in 2013.

This article was produced by Drug Reporter, a project of the Independent Media Institute. The Drug Policy Alliance is a funder of Drug Reporter.

New York City to become first US city to offer sites for supervised injection drug use

On November 30, New York City authorized two safe consumption sites to begin operations as soon as possible. The decision, a hard-fought victory for harm reduction advocates, makes them the first government-sanctioned overdose prevention centers, as they are also known, to open in the United States.

“New York City has led the nation’s battle against COVID-19, and the fight to keep our community safe doesn’t stop there,” New York City Mayor Bill de Blasio said in a press statement. “After exhaustive study, we know the right path forward to protect the most vulnerable people in our city. And we will not hesitate to take it.”

In the past few weeks, there have been reports that de Blasio—perhaps eyeing a gubernatorial run—would make good on a longtime promise to launch a pilot program for safe consumption sites (SCS). But that bid endlessly stalled without approval from the governor’s office under former Governor Andrew Cuomo. De Blasio will depart as the city’s mayor by the new year. But Eric Adams, the incoming mayor, has signaled his support for SCS. And with district attorneys and police also reportedly onboard, the sites’ operations should be protected.

A pair of nonprofits—New York Harm Reduction Educators (NYHRE) and the Washington Heights Corner Project—are merging to create a new organization, OnePoint NYC, which will operate the sites in East Harlem and Washington Heights. There, people will be able to obtain sterile syringes and other safer-use supplies, access treatment options and other services, and bring their own drugs to use, with trained staff and naloxone on hand.

The two sites already run syringe service programs. Some harm reduction programs in the city have also been effectively operating SCS without government approval.

In the national context, New York City’s move arrives as overdose deaths have hit record highs during the coronavirus pandemic. Recent data showed that more than 100,000 people in the United States died during a 12-month period between April 2020 and April 2021, amid an increasingly adulterated illicit drug supply.

The Biden administration has indicated broad acceptance of harm reduction approaches to drug use, without, however, taking an explicit stance on SCS. Despite numerous other jurisdictions’ attempts to get similar programs off the ground—Rhode Island made history by passing a bill in the summer to authorize an SCS pilot program—none have yet gone as far as New York City.

“This is a watershed milestone in the fight to end overdose deaths in New York,” Melissa Moore, the director of civil systems reform at the Drug Policy Alliance, who previously led the DPA’s work in the state, said in a statement. “If we want to save lives, reduce criminalization, and curb racial disparities, we need comprehensive, innovative, and forward-thinking approaches like Overdose Prevention Centers.”

As DPA notes, approximately 120 sanctioned SCS already operate in 10 countries around the world, and “over 100 evidence-based, peer-reviewed studies have consistently proven the positive impacts of supervised consumption services.” The organization lists some of these demonstrated benefits as follows:

* Increasing entry into substance use disorder treatment

* Reducing the amount and frequency that clients use drugs

* Reducing public disorder and public injecting while increasing public safety

* Reducing HIV and Hepatitis C risk behavior (i.e. syringe sharing, unsafe sex)

* Successfully managing frequent on-site overdoses and reducing drug-related overdose death rates (there has not been a single overdose fatality at any SCS worldwide)

* Saving costs due to a reduction in disease, overdose deaths, and need for emergency medical services

* Increasing the delivery of medical and social services

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

The right is using the Wisconsin parade tragedy to attack bail reform — but they need a fact-check

After an SUV plowed through a holiday parade in Waukesha, Wisconsin on November 21, killing five people and injuring 48, including many children, hard-right pundits treated the subsequent arrest of Darrell Brooks like a gift.

Jennifer Van Laar, the editor of popular conservative blog Red State, tweeted, "FIFTY PAGES in Darrell Brooks' criminal record. Drugs, violence, crimes of moral turpitude, sexual offenses. But hey, let's allow him to bond out on $1000 even though he's charged with jumping bail."

Alt-right troll Jack Posobiec and COVID-19 disinformation spreader Chuck Callesto echoed this idea. Turning Point USA's Benny Johnson went a step further, blaming Milwaukee District Attorney John Chisholm for the incident. So did Mike Cernovich, who ripped into Chisholm as a "Soros DA," despite Chisholm never receiving money from George Soros or his affiliated PACs.

DA Chisholm, as a writer at Red State put it, is allegedly a "radical leftist who has sought to institute 'criminal justice reform' via 'bail reform.'" It is insinuated that Chisholm quietly ushered Brooks out on a serious and recent domestic violence charge on $1,000 bail, then rolled it back in the media after the tragedy, claiming that his deputy prosecutor made a mistake (Chisholm has now launched an investigation into the Brooks bail decision).

Such commentators are in desperate need of a fact-check.

Wisconsin is not like California or New Jersey, which saw bail reform legislation pass in the last few years. It has not had a substantial amendment to its bail law in at least 10 years, according to the Wisconsin state legislature's website.

However, the current law does state that a judge can hold a person charged with a crime in jail pretrial "only upon a finding by the court that there is a reasonable basis to believe that bail is necessary to assure appearance in court."

Meanwhile, both chambers of the Wisconsin legislature have been dominated by Republicans every year in the last decade.

Besides which, if we look at bail reform on a statistical, rather than anecdotal, level, it does not reduce public safety. The vast majority of people facing charges return to court regardless of money bail. In addition, detaining people pretrial, effectively punishing poverty, is "criminogenic," because people lose their jobs and community ties are weakened.

"Money bail compromises public safety," according to analysis from the Prison Policy Initiative.

As Cernovich points out to support his cause, Chisholm has delivered criminal justice reform talking points. But Chisholm has rarely delivered anything on decarceration but talking points. The Democrat, first elected in 2006, has spent much of his career carefully avoiding policies that would make right-wing opponents angry.

In 2017, for example, Chisholm explained how he refuses to categorically drop marijuana possession cases, despite many of his peers elsewhere doing just that.

Chisholm is also the orchestrator of a national strategy to increase the use of drug-induced homicide prosecutions to people who sell drugs as murderers, despite people who have overdosed often not wanting this response. He has sent Assistant District Attorney Patricia Daughtery to national conferences to evangelize these prosecutions. Daughtery has gone so far as to advise officials to build cases using tactics that are disrespectful to the same people she is supposedly trying to protect, such as using the cell phones of people who overdosed.

Additionally, during Chisholm's tenure, Wisconsin had the highest rate of Black incarceration in the nation, with about 65 percent of Black Wisconsinites living in Milwaukee County. University of Wisconsin law professor Ion Meyn has raised concerns that part of this is due to higher prosecution rates and lower plea bargain rates for Black suspects.

Amid Chisholm's middle-of-the-road approach to his office, Milwaukee has one of the highest violent crime rates in the country, with 1,332 incidents for every 100,000 residents. His attempt to please everyone and incense no one has achieved little, and there are numerous progressive steps he should be taking. Chances are, the politicization of the Brooks case will increase the DA's timidity and push him in the opposite direction.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

Wyoming launched a system of humiliating, pervasive surveillance under the guise of fighting crime

Criminologists and, increasingly, local court systems love the idea of "swift, certain and fair" punishments for drug use (including alcohol) by people with criminal justice system involvement. They say that releasing people with strict anti-drug use conditions will curb mass incarceration, cut costs and assist in rehabilitation — a win for everyone.

Not only is this misleading, but the programs they are creating might be unconstitutional. That is what the ACLU contends of the 24/7 Sobriety Program in Wyoming, in a demand letter recently sent to Governor Mark Gordon, Attorney General Bridget Hill, the Teton County Sheriff's Office and others.

Its effectiveness as a public safety program is also in doubt.

The program, which was first created as a result of a 2014 law, creates stringent pretrial release conditions for people awaiting alcohol-related charges. Anyone caught drinking will be put back in jail. State lawmakers were inspired by a program created by former South Dakota Attorney General Larry Long in his state.

A training from the South Dakota Attorney General's Office illustrates what the program looks like, as well as some of the ideas behind it. The first slide tells the audience, "Why do we need the 24-7 Program? UNENFORCEABLE CONDITIONS," then lists examples of these conditions: Don't drink. Don't go to bars. Don't drive.

Later, it explains the program's two breathalyzer tests per day, which are mandated whether or not the person is driving. People who are convicted, but also those who are presumed innocent until proven guilty, can face these conditions. They also have to pay for the testing themselves.

A 2017 best practices manual from the National 24/7 Advisory Council shows another bad side to the program. Despite being billed as a personal-responsibility program that saves money and allows people to keep their jobs, South Dakota's in-person testing requirement "made it very difficult, if not impossible, for participants to obtain and keep jobs, attend school, or maintain a healthy family life." The state then introduced a transdermal patch as an alternative testing option.

In Wyoming, people are still coming in person for these tests. To be eligible for the program, the Teton County Sheriff demands an enrollment fee of $30, cash only, exact amount only.

Academic and think tank researchers bolstered the spread of the program, but their research has arguably been mischaracterized by the program's founder, Larry Long.

Sandwiched in between stories of drunk driving and domestic violence, Long wrote in 2017 that "RAND research, published in Lancet Psychiatry in 2016, showed that the implementation of a 24/7 Sobriety Program was followed by a 4.2% decrease in the state's mortality rate, equal to saving the lives of several hundred South Dakotans a year."

Yet Michael Farrell of the National Drug & Alcohol Research Centre in Australia, in summarizing that paper, stated: "In an analysis of cause-specific mortality, circulatory disorders but not digestive disorders or injuries (all proxies for alcohol-related mortality) were significantly reduced, whereas there was no association with cancer-related deaths (a falsification test)."

And the authors of the original paper themselves acknowledged that the decline in mortality was "most evident among circulatory disorders" amongst 24/7 Sobriety Program participants.

Thus, the program is not really about crime; rather, it is wielding public health concerns as a carceral weapon. The government has opted to subject the people it is allegedly trying to help to a humiliating, pervasive surveillance.

It is not surprising when you look at the founding members of the National 24/7 Advisory Council. Honolulu Prosecuting Attorney Steve Alm, the inventor of the ineffective and repressive HOPE probation program, is there. So is Stephen Talpins, the second-in-command to the fake-progressive Miami-Dade County State Attorney, Katherine Fernandez Rundle, who described the South Dakota program as "one of the most progressive programs in the country."

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

FDA memos reveal its 'fatal flaw' rejection plan for flavored vapes

There's an ongoing theory about the Food and Drug Administration (FDA) within the vaping community: The agency did not anticipate the onslaught of 6 million-plus premarket tobacco product applications (PMTAs) it received by a September 2020 deadline, and had to devise some way to try to sort through them all by the following year. It would be no easy feat, but the bar for authorization would be set incredibly high—and that, in the FDA's view, would help.

Documents obtained by Filter shed new light on how this murky process has looked from the heavily criticized agency's perspective. For the first time, they also give an indication, from the agency itself, of something else the vaping community has long inferred: that the FDA—despite some protestations to the contrary—has taken a systemically different approach to PMTA applications for the flavored products on which so many former smokers depend.

The agency previously signaled the threshold to be met—being "appropriate for the protection of public health"—would largely involve a tricky balancing act. Reviewers at the FDA's Center for Tobacco Products (CTP) would weigh the likelihood of a given product facilitating adult smokers to switch to a safer alternative versus its perceived potential to attract a new generation of nicotine users.

The FDA also made clear—even if many in the industry can argue it did so only after the September 2020 submission deadline—that tipping the scales toward authorization would likely require at least one of two types of studies: longitudinal cohort studies, which track large groups of people over an extended period of time, or randomized controlled trials (RCTs), another type of study that examines a specific group of people through intervals of time. Both are costly and require high levels of skill.

On September 9, however, Mitch Zeller stated in an update to the agency's PMTA process that the FDA "does not foreclose the possibility that other types of evidence could be adequate if sufficiently robust and reliable." But the agency has never really expanded on what kind of other evidence that would be.

FDA memos reviewed by Filter provide an inside look into the procedure, establishing explicitly how the agency handled the heavy volume of applications for flavored vaping products.

"Office of Science has been tasked with developing a new plan to effectively manage the remaining non-tobacco flavored ENDS PMTAs not in Phase III, substantive scientific review," reads a memorandum signed on July 9 by Matthew Holman, the director of CTP's Office of Science. "This task has been assigned by the Acting Commissioner given the likely impact on the marketplace on September 10, 2021 (the end of the enforcement discretion period for deemed tobacco products) and in order to take final action on as many applications as possible by September 10, 2021."

"Considering the large number of applications that remain to be reviewed by the September 9, 2021 deadline, OS [Office of Science] will conduct a Fatal Flaw review of PMTAs not in Phase III for non-tobacco-flavored ENDS products," the memo goes on. "The Fatal Flaw review is a simple review in which the reviewer examines the submission to identify whether or not it contains the necessary type of studies."

Critically, the memo continues: "The Fatal Flaw review will be limited to determining presence or absence of such studies; it will not evaluate the merits of the studies."

According to the FDA, there are three "phases" of the PMTA review: Phase I (Acceptance), which essentially means an application has been received; Phase II (Notification or Filing), which entails acknowledging a company had enough information for its applications to be formally filed; and Phase III (Review), which involves a substantive scientific evaluation, followed by a marketing granted order (MGO) or MDO. (In August, the agency refused to file—that is, move to Phase II—about 4.5 million vapor product applications filed by a single manufacturer, JD Nova, because an environmental assessment was not included.)

The memo continues to explain that CTP used "a database query to identify the top twelve manufacturers with the largest number of pending PMTAs not in Phase III for non-tobacco flavored e-liquid products," which then represented 85 precent of all pending PMTA applications. The agency pulled these applications "out of their respective place in the PMTA priority list," and once "Phase II filing was initiated," they underwent the "Fatal Flaw" review.

"Manufacturers are responsible for making their case within their application," Eric Lindblom, a senior scholar at Georgetown's O'Neill Institute for National and Global Health Law and a former director of the CTP's Office of Policy, told Filter. "And the FDA is under no legal obligation to fill in any missing gaps or apply external studies or evidence to make the application fulfill application requirements … to make the application worthy of getting an order allowing marketing—to make a PMTA product's marketing appropriate for the protection of the public health."

Still, the Fatal Flaw standard appears to be new; it does not seem to have been employed by CTP in the past. A former CTP employee, speaking to Filter on condition of anonymity, said that they had never heard of the "Fatal Flaw" standard until now.

The FDA has denied the applications of most small- and medium-size producers, issuing identical marketing denial orders (MDOs) for their mostly flavored products, while indicating more time was needed to evaluate the players with the largest market share. (It has authorized just one vape, along with two tobacco-flavored cartridges.)

So the way this happened, previously shrouded in mystery, just became a whole lot clearer: CTP reviewers created what's probably a new method to get through a backlog of millions of PMTAs, searched those applications for longitudinal cohort studies and RCTs without evaluating any other evidence, and for applications lacking them, did not advance them beyond Phase II and just sent out templated MDOs.

Some in the vapor industry wonder if the "Fatal Flaw" review emerged after Janet Woodcock, the agency's acting commissioner, testified at a congressional hearing at the end of June. Many leading Democrats—including two of the most vocal vaping critics, Senator Dick Durbin and Congressman Raja Krishnamoorthi—scolded Woodcock and her agency for not doing enough to address youth vaping rates. There may have been, in other words, political pressure to act, even as youth vaping has fallen. Holman signed the memo a little over two weeks after the hearing.

"The 'Fatal Flaw' standard was created out of a sense of embarrassment on the Hill by the acting commissioner," an industry insider, speaking on condition of anonymity given a pending PMTA application, told Filter.

"Janet Woodcock's legacy won't be vaccines or drug approvals," they continued. "It will be involving herself politically in the vaping market and making it harder for products that adults use to quit smoking to remain on the market. She has politicized the FDA more than any of her recent predecessors, by far."

Through a spokesperson, the FDA declined to comment, as the agency does not do so "on possible, pending or ongoing litigation."

In the meantime, dozens of vapor companies have sued the FDA, mainly for acting in an "arbitrary and capricious manner," and two so far have received full-blown rescissions, with the agency citing that the "FDA found relevant information that was not adequately assessed."

Another company, Triton, which at the end of October received a full stay from a federal court of appeals to continue selling its products as its lawsuit made its way through the court system, revealed that at least some judges agree with the industry's logic: The FDA did not adequately inform manufacturers that long-term data, in the form of longitudinal cohort studies or RCTs, would be totally necessary.

The new evidence of the FDA's cut-and-paste methodology, which emerged through these lawsuits, further substantiates vaping advocates' portrayal of the process as not only chaotic, but stacked against smaller companies and flavors.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

It was a bad election night for criminal justice reform — but there were a few bright spots

The future of criminal justice was on the ballot across the United States on November 2. The theme ran through electoral contests as varied as the gubernatorial election in Virginia and the mayoral race in Minneapolis, Minnesota. In several cities, firebrand leftist candidates ran on reconceptualizing public safety, up to and including prison and police abolition.

It did not work out so well in the end.

Nonetheless, it would be a stretch to read the results as a decisive referendum on the popularity of criminal justice reform and/or abolition. Many other variables were at play in most of these votes, not least politics-as-usual—the so-called "thermostatic" effect whereby voters of the party that doesn't hold the White House are energized, leading in this case to a backlash against a Democratic party split between its centrist and progressive wings. The issues aren't going away, but here's how some of the key races just went.

Youngkin Is the Next Virginia Governor

This race, pitting former Democratic Governor Terry McAuliffe against Republican and political newcomer Glenn Youngkin in a blue-leaning state, was perceived as a national barometer and was always going to be close.

But Youngkin narrowly came out on top, spelling a likely halt for ongoing legislative initiatives to reform Virginia's justice system. Youngkin has claimed that Democrats have made Virginia less safe, and has promised a police officer in every school, among other changes.

Youngkin also has his eyes on the newly elected set of progressive prosecutors in Virginia. During the campaign, he publicly targeted Loudoun County Commonwealth's Attorney Buta Biberaj, after she charged the father of a student who was allegedly sexually assaulted for disrupting a school board event. It was part of Youngkin's tactic of aiming culture-war messaging (especially against critical race theory, which isn't even taught in Virginia's schools) at parents.

However, Biberaj reportedly did not know who the man was; she simply accepted a referral for prosecution from the sheriff's deputies who arrested him.

Nonetheless, Youngkin's placing blame for the incident on Biberaj led to multiple death threats against the prosecutor, as well as a deluge of articles from far-right hate sites due to her identity as a Muslim first-generation immigrant.

In a sign of national momentum, the New Jersey gubernatorial race, which incumbent Democrat Phil Murphy had been expected to win comfortably, was still in a knife-edge count at publication time.

Minneapolis Keeps Its Police Department

Despite the murder of George Floyd, Minneapolis residents voted to keep the Minneapolis Police Department the way it is, instead of creating a Department of Public Safety that would have included policing under its purview.

This move would not have "abolished" the police, but would have been more similar to the rebranding measure that happened in Camden, New Jersey almost a decade ago. In theory, at least, it would have increased support for the unarmed alternative responder model for nonviolent emergency calls and community violence prevention efforts. Nonetheless, the result is a clear setback for the defund/abolition movement.

Mayor Jacob Frey, who opposed disbanding the police department, gloated after he was seemingly re-elected last night, stating, "I think all of us can now stop with the hashtags and the slogans and the simplicity, and say let's all unite around things that we all agree on."

Unfortunately, the moderate police reforms he has supported while in office, like the DOJ-sponsored National Initiative for Building Community Trust and Justice to improve police-community relations, have failed to make a substantial difference in the city.

Radical Bids Fall in Buffalo, Seattle

In Buffalo, New York, self-identified democratic socialist India Walton defeated the incumbent mayor in the primary earlier this year. But that mayor, Byron Brown, staged a write-in campaign that apparently defeated Walton last night. Walton made public safety reform a major part of her campaign, and during the primary season she said she would "absolutely" support defunding the police.

Across the country in Seattle, Republican Ann Davison bested Nicole Thomas-Kennedy, a former public defender who supports prison and police abolition, in the city attorney race. Leading up to the election, the city's largest newspaper all but declared war on Thomas-Kennedy due to her inflammatory tweets about police officers.

Progressives See Bright Spots in Philly, NYC, Austin

All of these outcomes sent shockwaves down the spines of Democrats, as well as spreading doubts on whether a large enough constituency supports substantial changes to the way criminal justice operates—at least in the way that such changes are currently being framed. But there were bright spots for progressives, even if they were mostly about not losing—rather than gaining—ground.

In Philadelphia, for example, reformist District Attorney Larry Krasner staved off Charles Peruto, the Republican longshot in the heavily Democratic city. Peruto entered the race with the specific objective of ousting Krasner, and was less interested in actually becoming the new DA. The candidate was a registered Democrat who voted for Krasner in 2017, but he said he had "no idea he would turn out to be this liberal."

Meanwhile in New York City, Tiffany Caban, the abolitionist who nearly became Queens district attorney in 2019, won a city council seat. She hit the news just days ago for handing out "Defund the NYPD" merchandise.

And while voters in Austin, Texas did not see defund or abolish the police on the ballot, they overwhelmingly rejected a measure to increase staffing at the Austin Police Department.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

The real reason an abolitionist Seattle city attorney candidate is taking heat

Nicole Thomas-Kennedy, a Seattle candidate for city attorney and self-identified prison and police abolitionist, can be characterized as a member of the "extremely online" left. She's tweeted about her "rabid hatred" of the police, and in a now-deleted tweet from last winter replied to a holiday message from Seattle Police Chief Adrian Diaz with: "Eat some covid laced shit & quit ur jobs."

Tweets of that nature were bound to surface once she announced she was running for office—this office in particular. The city attorney—the nominally nonpartisan official in charge of all misdemeanor prosecutions and a smattering of civil legal disputes—must cooperate with the city police to prosecute misdemeanor cases. The election is taking place November 2.

In October, the Seattle Times editorial board authored an op-ed declaring that Thomas-Kennedy's tweets made her unfit to serve.

In the field of criminal justice reform, abolitionist and anti-carceral law professors usually have productive things to say. Due to their overall calm, balanced tone, they usually don't get that much attention.

Twitter, which for both better and worse is the platform where a large proportion of journalists and public officials spend their time, rewards and amplifies anger. People are often their loudest, angriest selves on Twitter. It doesn't necessarily mean they aren't capable of nuance, or of upholding the ethics of public office.

Outside the powder keg of Twitter, Thomas-Kennedy can make a very different impression.

"[Abolition has] never been about letting everyone out overnight and having a crime fest à la The Purge," Thomas-Kennedy told Filter. "It is about scaling up community-based support, services and accountability programs that eventually take the place of policing and prisons. It's a goal and a process."

She emphasized that "traditional prosecution must remain an option while we scale up those programs, but it's not a one-size-fits-all approach."

Thomas-Kennedy voiced concern with ending the criminalization of poverty and listening to the voices of anti-carceral crime survivors—while still prosecuting cases she deems appropriate.

"If you live in a neighborhood that is resourced and where you can get help if you need it—good schools and after-school programs, access to necessary health care, available addiction and treatment services—then you already live in the neighborhood that I want for everyone," she said. "It's the healthiest communities that are the safest, not the ones that are over-policed or over-incarcerated."

Opponent Ann Davison, a perennial candidate who unsuccessfully ran for Washington lieutenant governor as a Republican last year, appears much more concerned with so-called under-prosecution of crimes, especially by people with past convictions. Davison did not respond to Filter's request for an interview.

The same day it ran its op-ed on Thomas-Kennedy's tweets, the Seattle Times editorial board ran a second op-ed reaffirming its support for Davison, whom it had already endorsed in July.

Thomas-Kennedy described the editorials as lacking in "both context and an analysis of power." Although she stood by her tweets as a private citizen, since becoming a candidate for public office she's deleted the more controversial ones and taken a more tempered approach to social media.

While the Seattle Times board frames its objection as a call for "civility," it also warns readers in horrified tones of her quest for abolition and her support of "riots." And—in a prime example of saying the quiet part out loud—her intention to decline prosecuting "most, or all, of the misdemeanor cases officers bring in."

One of the editorial board's seven bylines belongs to Frank Blethen, who is also the Seattle Times Company CEO and who once bought a Republican candidate for governor $75,000 in ads. It seems clear that what has the board members aghast is less the candidate's social media presence and more her policies.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

A California district attorney claims to be a reformer — but he just said the quiet part out loud

Despite claims at being a "reformer," Jeff Reisig, the Yolo County, California, district attorney since 2003, is jumping on the drug-induced homicide bandwagon. In a summer press release, DA Reisig announced that defendants accused of selling drugs will now receive a warning that the substances "could very well contain lethal fentanyl."

By way of explanation, he noted that "When people get a DUI, we give a warning that DUIs can cause death, which becomes evidence if they later kill someone in a DUI."

Reisig just said the quiet part out loud. The operative function of such warnings is not deterrence, but to shore up potential criminal cases against people in the future.

Drug-induced homicide prosecutions are usually a bad idea for prosecutors who care about their conviction rates, as most do, including Reisig himself. They are hard to prove, both in terms of causation and the defendant's intent, and thus hard to win. At least in the federal context, even the Supreme Court has green-lit making these convictions harder to obtain.

But by giving a person the warning, Reisig can now use the fact that they were warned to "prove" that they had a necessary intent to commit a drug-induced homicide, if a buyer later overdoses.

Where specific drug-induced homicide statutes don't exist, like in California, prosecutors can choose to use preexisting murder or manslaughter statutes in these cases. It is almost unheard of for prosecutors to use first-degree murder statutes, because fatal overdoses are virtually never the result of someone's "willlful and premeditated" plot to kill. So they use second-degree murder and manslaughter charges, for which a person's recklessness or negligence is enough proof.

If using one of those statutes, Reisig's introduction of evidence that the defendant received one of his notes could make the case a slam dunk, since the defendant would be presumed on notice of the risk of a potential buyer's death.

Despite Reisig reportedly hoping that this initiative will help put an end to the overdose crisis, he seems oblivious to the harm reduction saying, "Every overdose death is a policy failure."

A recent training slideshow made by the Yolo County Health and Human Services Agency and DA Reisig's office shows the names and photos of 16 local fatal overdose victims, then ominously states, "There will be more"—as if it's an inevitability over which these departments have no control. The experiences of Portugal, for example, show that if Reisig declined to prosecute drug possession and if Yolo County beefed up its public health response with harm reduction resources, deaths could be drastically reduced.

We don't know how Yolo County residents collectively feel about drug-induced homicide prosecutions, but it's unlikely that Reisig would care one way or the other. According to information from the ACLU of California, he did not stand united with his voters on any of the state's major criminal justice reform ballot initiatives in the 2010s.

While locals approved measures to reform the state's draconian "three strikes" sentencing law, reduce some crimes to misdemeanors, legalize cannabis, and increase parole access for some prisoners, Reisig supported none of these and actively opposed the latter three.

More recently, he called the state's death penalty moratorium a "leniency for mass murderers," despite a majority of his voters supporting its abolition.

What's more, back in 2005, DA Reisig was the first prosecutor in Northern California to obtain a "gang injunction"—a type of civil legal action that in effect criminally bans loitering in certain areas and fraternizing with certain people because of supposed gang membership. Not only have these injunctions been generally condemned as racist in recent years, but Reisig also failed to notify people they could be placed on this list. By doing so, he violated people's constitutional rights, leading to the injunction's reversal in court.

Astonishingly, none of this has stopped local power players from falling for Reisig's rhetoric that he is some sort of reasonable moderate. In 2018, when deputy public defender Dean Johansson challenged Reisig as part of the progressive prosecutor movement, the Sacramento Bee's editorial board backed Reisig.

The publication specifically cited Reisig's promises to "double the size of mental health court and add more beds to the county's addiction intervention court." But as many advocates have pointed out, those "reforms" hurt just as many as they help, often leading to jailing people in the name of supposedly "saving" them.

The Bee also favorably marked Reisig's supporting "a push at the state Capitol to require the California Attorney General's Office to investigate all officer-involved shootings," and requiring his deputies do implicit bias training. But both reforms do more to shield the DA from political criticism than to reduce incarceration rates or police impunity. If the state's AG is the one who decides not to indict a killer cop, it will be the AG's office that angry protesters will travel to, not Reisig's.

National criminal justice reform organizations also flock to Reisig to engage in partnerships. Earlier this year, Measures for Justice, a prominent nonprofit dedicated to collecting local criminal justice data nationwide, launched a first-of-its-kind criminal justice data portal, called Commons, with the Yolo County DA Office. According to Reisig's campaign website, this collaboration means that "all criminal case data from the office is validated and published by a neutral third party and available for public inspection, media review and research." Currently, Commons is helping Reisig keep accountable to his stated goal of increasing the office's felony diversion rate to 10 percent by September 2022.

The fact that Reisig notes his collaboration with Measures for Justice not just on a governmental page, but on his own campaign website, shows he understands the political capital the link will earn him amongst his liberal, college town constituency. (Yolo County is home to the massive UC-Davis campus.)

It begs the question of whether Measures for Justice knew about Reisig's record when it entered this collaboration, and if the organization considered how a "tough-on-crime" conservative could use this as a campaign tool. Many will give Measures for Justice the benefit of the doubt: The project perhaps shows that just about any prosecutor can make incremental reforms if praised enough for doing so.

Still, a broken clock is right twice a day only. DA Reisig's drug-induced homicide policy is just one of many times when he is badly wrong.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

New study boosts movements to decriminalize drugs and sex work

Replication is of paramount importance, in the sciences, in determining whether earlier research was a fluke or says something generally true about the world. As a textbook from the National Academies of Sciences, Engineering, and Medicine puts it, "When the result from one study is found to be consistent by another study, it is more likely to represent a reliable claim to new knowledge."

Earlier this year, three professors working with the National Bureau of Economic Research (NBER) published their study on Suffolk County (Boston) District Attorney Rachael Rollins' default policy of declining to charge a slew of misdemeanor offenses. Their conclusion was that "the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates."

It was a finding that "tough-on-crime" adherents naturally attempted to minimize. But taking that line just became a whole lot harder.

A new report is the cumulation of a 14-month study on Baltimore State's Attorney Marilyn Mosby's March 2020 decision to no longer prosecute low-level drug possession and drug paraphernalia charges, as well as "prostitution" charges. Mosby has already announced her intention for this COVID-era policy to remain in place, even after the pandemic slows or halts.

The results of the research, conducted by the Johns Hopkins University's Bloomberg School of Public Health (JHU), fit squarely with NBER's findings. Mosby's new policy emphatically did not jeopardize public safety, while significantly reducing harmful and racist criminalization.

An estimated 443 arrests were averted in the 14-month period after the policy was adopted in Baltimore. Seventy-eight percent of the people whose arrests were prevented were Black, in a city that is 63 percent Black according to the 2010 census. And only six out of 741 people whose charges were dropped under Mosby's policy were later rearrested for "serious crimes, such as robbery and assault," the authors found—less than 1 percent.

"Though causality cannot be established," the report summarizes, "these preliminary findings suggest that declining to prosecute low level drug and prostitution offenses may avert arrests among individuals with intersecting vulnerabilities without posing a threat to public safety or resulting in increased public complaints. Ensuring that these individuals can access health and social service instead of criminal punishment is a public health priority."

State's Attorney Mosby applauded these conclusions, even if they're unlikely to have surprised her.

"This report demonstrates what we have set out to do as an office—reimagine the criminal justice system, by promoting healthy communities and no longer criminalizing behavioral health issues that do not pose a public safety threat," she told Filter. "The data proves that we must continue to move past the era of tough-on-crime prosecution and zero tolerance policing and no longer just default to the status quo of criminalizing mostly people of color for addiction. I appreciate the hard work and detailed analysis by the Johns Hopkins research team."

Interestingly, unlike the NBER report, the JHU report examines the impact of the DA's announcement on the police, rather than focusing mainly on the decision of whether to charge. There is significant debate about who are the most powerful actors in the criminal-legal system, with the main contenders being police, judges and prosecutors. In some jurisdictions, the DA announcing a plan to use discretion to decriminalize a specific offense has not led to police responding in kind. For instance, in Harris County, which covers the Houston, Texas metro area, many in-county police departments continued to arrest people for low-level cannabis possession without offering DA Kim Ogg's new diversion program.

However, in Baltimore, arrests for the offenses Mosby said she would no longer prosecute plummeted, as did complaints relating to these offenses. The police chief, Michael Harrison, even worked to "socialize" his officers to this approach, making the case for why they should follow the policy even if they did not agree with it.

There is no doubt that the JHU study's findings will help the movement to decriminalize drugs—which won its biggest US victory so far in Oregon last November—and the related movement to decriminalize sex work. The findings also lend support to the so-called "progressive prosecutor" movement, of which decriminalizing low-level, non-violent charges is an important part. When it comes to these issues, public safety data, like ethics, are firmly on the side of progress.

The findings also represent a moral victory for Mosby and Rollins, who are both Black women seeking to transform a racist justice system. Mosby cited racial justice concerns as an important reason for the new policy, because people of color are disproportionately targeted by police and prosecutors, and JHU's findings about Black arrests averted underlined her pont.

Black women are vastly underrepresented in the ranks of the nation's elected prosecutors. A 2014 report from the Women Donors Network found that 94 percent of DAs were white, and 79 percent were white men. While blazing trails, Mosby and Rollins have been targeted for even worse vitriol than other progressive prosecutors, who get plenty of scorching unfair criticism. Mosby herself has publicly shared evidence of the hateful, racist backlash she has received.

The release of the JHU report should bring hope to all who campaign for decriminalization (or legalization)—and, therefore, to millions who have been subjected to vindictive, targeted law enforcement for so long.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

House votes to kill the racist crack and powder cocaine sentencing disparity

Watching the gigantic logjam on Capitol Hill as Democrats attempt to pass both the infrastructure bill and a multitrillion-dollar social spending bill through Congress while Republicans do their best to obstruct it, observers could be forgiven for thinking that Congress has devolved into a do-nothing partisan circus. But while all eyes were on the internecine conflict among the Democrats, the House of Representatives actually just achieved something significant.

In an effort to undo one of the gravest examples of racially biased injustices resulting from the war on drugs, the House voted on September 28 to end "the federal sentencing disparity between drug offenses involving crack cocaine and powder cocaine." The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act of 2021 (HR 1693), passed on a vote of 361-66, demonstrating bipartisan support, although all 66 "no" votes came from Republicans.

Amidst media hysterics about "crackheads" and "crack babies," with a distinctly racial tinge, and a "tough-on-crime approach" resulting from the political posturing around crack use in the early 1980s, Congress passed the Anti-Drug Abuse Act of 1986, cosponsored by then-Senator Joe Biden (D-DE) and signed into law by former President Ronald Reagan. Under that bill, people caught with as little as 5 grams of crack faced a five-year mandatory minimum sentence, while people would have to be caught with 500 grams of powder cocaine to be handed the same sentence for the crime.

While appearing race-neutral on the surface, this law was disproportionately wielded as a weapon against African Americans. According to a yearlong investigation by the Asbury Park Press and the USA Today Network that "examined hundreds of thousands of arrest records and federal drug convictions" across the U.S. for more than 30 years, "Most crack users were and still are white, according to federal surveys, but [B]lacks were sent to federal prison nearly seven times more often for crack offenses from 1991 to 2016." Between 1991 and 1995, in the depths of the drug war, Black people were 13 times more likely to be caught up in the criminal justice meat grinder over crack in comparison to "every white defendant locked behind bars" for the same crime. And even in 2020, the U.S. Sentencing Commission reported that "Black people made up 77 percent of all federal crack convictions."

After years of effort by an increasingly broad alliance of organizations for drug reform, racial justice and human rights, also including religious and civic groups, the passage of the 2010 Fair Sentencing Act reduced the "disparity between offenses for crack and powder cocaine from 100:1 to 18:1," and the 2018 First Step Act, signed by former President Donald Trump, allowed people convicted before the 2010 law was passed to seek resentencing. But, as the Brennan Center for Justice at NYU Law pointed out in 2019, the First Step Act "marks progress for criminal justice reform, but it has some notable shortcomings. It will leave significant mandatory minimum sentences in place… [and] two of the bill's key sentencing provisions are not retroactive." This criticism also led to calls like that the First Step Act "not be the only step." But now, finally, an end to the disparity is in sight with the recent movement on the EQUAL Act.

Reform advocates praised the passage of the EQUAL Act in the House.

"After the murder of George Floyd, it was obvious that we as a country needed to work harder to stamp out racial discrimination in our justice system," Kevin Ring, president of Families Against Mandatory Minimums (FAMM), said in a statement after the vote. "Eliminating the crack-powder disparity, which has disproportionately and unfairly harmed Black families, was an obvious target. … [The September 28] huge bipartisan vote reflects the overwhelming public support for eliminating the crack disparity. We hope the Senate acts quickly to remove this 35-year-old mistake from the criminal code."

"For 35 years, the sentencing disparity between crack and powder cocaine, based on neither evidence nor science, has resulted in higher sentences that are disproportionately borne by Black families and communities. We applaud the House for passing the EQUAL Act, which will finally end that disparity, including for thousands of people still serving sentences under the unjust disparity who would now have the opportunity to petition courts for a reduced sentence," ACLU senior policy counsel Aamra Ahmad said in a statement.

"Congress should continue to work to end the war on drugs, including ending mandatory minimum sentences that disproportionately impact communities of color while failing to make us safer. Now that the House has taken this important action on the EQUAL Act, the Senate must quickly follow suit and finally end this racially unjust policy," she added.

The Senate version of the bill is S 79, which has been introduced by Senator Cory Booker (D-NJ) and cosponsored by fellow Democrats Dick Durbin (IL) and Patrick Leahy (VT) and GOP Senators Rand Paul (KY), Rob Portman (OH), and Thomas Tillis (NC). After the vote, they prodded their Senate fellows to get moving.

"[On September 28], House Republicans and Democrats joined together in passing the EQUAL Act, legislation that will once and for all eliminate the unjust federal crack and powder cocaine sentencing disparity," the bipartisan Senate sponsors said in a joint statement. "Enjoying broad support from faith groups, civil rights organizations, law enforcement, and people of all political backgrounds, this commonsense bill will help reform our criminal justice system so that it better lives up to the ideals of true justice and equality under the law. We applaud the House for its vote today and we urge our colleagues in the Senate to support this historic legislation."

The bill has the support of President Biden, who endorsed it in June, but faces uncertain prospects in the Senate. It will need at least 10 Republican votes to pass, and in this Senate, it is difficult to imagine 10 Republican senators voting for anything the Democrats support. Yet, the cause of criminal justice policy reform has made some strange bedfellows, and this Congress is a long way from over.

Phillip Smith is a writing fellow and the editor and chief correspondent of Drug Reporter, a project of the Independent Media Institute. He has been a drug policy journalist for more than two decades. He is the longtime writer and editor of the Drug War Chronicle, the online publication of the nonprofit Stop the Drug War, and was the editor of AlterNet's coverage of drug policy from 2015 to 2018. He was awarded the Drug Policy Alliance's Edwin M. Brecher Award for Excellence in Media in 2013.

This article was produced by Drug Reporter, a project of the Independent Media Institute.

Big pharma and drug lobbyists are 'courting' Kyrsten Sinema as the 'lead blocker' on pricing reform: report

It is no coincidence that Sen. Kyrsten Sinema of Arizona is often mentioned in the same sentence as Sen. Joe Manchin of West Virginia. Sinema and Manchin are among the Democrats who have the most conservative voting records in the U.S. Senate. And according to Guardian reporters Andrew Perez and David Sirota, that fact isn't lost on lobbyists for pharmaceutical companies.

In an article published by The Guardian on October 11, Perez and Sirota report, "In the current Congress, big pharma appears to have zeroed in on Sen. Kyrsten Sinema, Democrat from Arizona, as one of their lead obstructionists to help kill or gut the Democrats' drug pricing plan. In the 2020 election cycle, pharmaceutical political action committees suddenly funneled more money to her than they did the whole six years she served in the U.S. House."

The 45-year-old Sinema, a Tucson native, served in Arizona State Legislature before serving three terms in the U.S. House of Representatives. But when she was elected to the U.S. Senate in 2018, defeating Republican nominee Martha McSally, it marked the first time she won a statewide race for a position in the federal government. In the Joe Biden era, Sinema is a swing vote who can make or break Democratic bills — and progressive Democrats view Sinema as an obstacle to their hopes of reducing drug prices in the United States.

Perez and Sirota explain, "It's clear now that the pharmaceutical industry has been courting Sinema for some time. Indeed, in March 2021, as pharmaceutical PAC money was flooding into her campaign coffers, drug lobbyists were already bragging to Beltway reporters that they may have found their lead blocker in Sinema."

The Arizona senator, according to Perez and Sirota, "has studiously avoided giving the public any details about where she stands on virtually any of the policy proposals in Democrats' reconciliation legislation — refusing to speak with activists, reporters, or even other Democratic lawmakers."

In the past, Sinema campaigned on lowering drug prices in the United States — where people pay a lot more for prescription drugs than residents of European countries. But in 2021, Perez and Sirota report, big pharma views Sinema as a possible ally.

"Over the course of her career," the Guardian reporters note, "Sinema has accepted more than $500,000 from executives and PACs in the pharmaceutical and health products industries, according to data from OpenSecrets. By March 2021, big pharma wasn't just quietly funneling money to Sinema; the industry was publicly signaling that the senator could be its lead blocker in the fight to prevent the government from negotiating drug prices."

A judge jailed a witness for legal marijuana use — in the middle of testimony about her abuse

On September 7, a survivor of domestic violence in Virginia was testifying against the man accused of her abuse when she disclosed that she had smoked marijuana earlier that day. Marijuana is legal for adult use in the state, and prosecutors said she did not appear intoxicated. Loudoun County Circuit Court Judge James P. Fisher, however, had her physically removed from the stand and sentenced her to 10 days in jail for contempt of court.

Virginia has codified reasons for which a judge can jail someone for contempt, like making threats or disobeying a lawful order. Having smoked marijuana outside of court is not among them. Fisher nonetheless refused to rescind the contempt order, and declared a mistrial for the woman's alleged abuser, who was facing his third domestic violence charge.

"I have learned that it does no good to report domestic abuse because the system and the courts appear to have no real interest in protecting victims and punishing abusers," the woman said in a statement. "The judge has sent me a clear message."

Little stops judges like Fisher from doing whatever they please. In most states, at least some types of judges are elected by popular vote and can be ousted the same way. But in Virginia and South Carolina, judges are "elected" by legislators.

In January 2020, Fisher jailed divorce attorney Rachel Virk for contempt of court when she tried to get clarification of a ruling on a motion—an important part of the court process so litigants can be treated fairly when appealing a trial court's decision. Virk was booked in the local jail as a result, later detailing to reporters how she was strip-searched.

Fisher's arbitrary use of his power seem not limited to contempt law. As an elected prosecutor, Fisher only pushed for three years behind bars for a Culpeper police officer who fatally shot an unarmed woman. (A prosecutor does not determine the sentence, but is instrumental in making the case for it.) On September 17 of this year, Judge Fisher sentenced a man to 36 years in prison for nonviolent fraud offenses.

The only entity holding Fisher accountable is the Judicial Inquiry and Review Commission (JIRC), the state agency charged with investigating judicial misconduct. Such an investigation would need to be initiated by the Commission Counsel, who is effectively head of the agency and functions as the "gatekeeper" of complaints against judges in the state. Without a green light from the Counsel, the Virginia Supreme Court does not discipline judges for misconduct. The current Counsel is Raymond Morrogh—a man who appears to be Fisher's close friend.

Morrogh and Fisher have much in common, including a proclivity for harsh penalties around marijuana. Morrogh, a former elected prosecutor, lost re-election to progressive reformer Scott Descano in 2019. One of Descano's first moves as the new Fairfax County Commonwealth's Attorney was to announce that he would undo Morrogh's policy on simple possession charges and drop those cases. (This was prior to marijuana legalization in Virginia, which took effect in July of this year).

Before Fisher ascended to the bench in 2019, he was the Commonwealth's Attorney of Fauquier County. He was appointed by a body of local judges in 2011 after his predecessor became a family court judge, then was re-elected without opposition. As a top local prosecutor, Fisher bemoaned former Governor Terry McAuliffe's restoration of voting rights for people with felony convictions. So did Morrogh.

Morrogh, a "tough-on-crime" true believer who chastised US Attorney General Eric Holder for wanting to slightly reduce prison terms for federal drug defendants, seems to be another appointee in Harp's anti-accountability mold. Due to camaraderie fostered between Commonwealth's Attorneys when they lobby together for ever-harsher criminal laws, Morrogh's bias can be expected to especially benefit judges who once served as elected prosecutors.

JIRC was created as an alternative accountability mechanism to judicial impeachment, which was virtually never used. But it has for decades been a self-serving entity that protects its own and empowers judges to hand out arbitrary punishments. The culture was installed by Reno Harp, III, another former career prosecutor who served as Commission Counsel from 1977 to 1997 and famously liked to find informal ways to get around disciplining judges. When asked if judges commit misconduct in Virginia, Harp told reporters, "It's not happening. It's that simple."

This stunning lack of oversight leaves those unfortunate enough to appear in Virginia court with Fisher, or judges like him, essentially subject to his whims rather than to the law.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

Democratic lawmaker gets criticized after admitting that pharma companies pay for 'access'

This week, Rep. Kurt Schrader of Oregon was among the centrist Democrats who joined House Republicans in voting to block a bill that advocates argue would significantly lower prescription drug prices. Following that vote, Schrader's connections to the pharmaceutical industry are being scrutinized.

Stephanie Villiers, a reporter for KGW-TV Channel 8 (the NBC affiliate in Portland, Oregon), notes, "Schrader's vote has been criticized on social media, with some users pointing out that he's received large donations from the pharmaceutical industry. According to OpenSecrets, a group tracking money in politics, Schrader has received $614,830 from the pharmaceutical industry since he began his career in Congress. He received $144,252 of that during the last election cycle, more money than any other industry that donated to his campaign."

Schrader's grandfather, according to the report, was a major executive at Pfizer. But Schrader is vigorously defending his vote and pushing back against claims that he is afraid to stand up to big pharma. The Oregon Democrat tweeted:

Schrader told KGW, "A common fallacy the average person has is the reason they give you money is you say you're going to vote for this or vote for that. I've never ever done that, and I don't know many legislators that do that. They just want to have access to at least plead their case. I think most smart legislators like me, we'll get the pharmaceutical groups in to champion their case, I'll get the patient advocacy groups to come in, I'll get the insurance companies and all the different groups — and then, you make your decision."

Some critics noted that, even as Schrader was trying to defend himself, he admitted the truth of the scandal — that pharma companies gave him money because they "want to have access" to the lawmaker to change his mind about laws that effect their industry. Schrader doesn't even seem to understand why that in itself can be corrupting.

Americans, as a rule, pay much higher prices for prescription drugs than residents of other major developed countries — a fact that many progressive Democrats have pointed out.

Efforts to lower prescription drug prices in the U.S. were discussed when David Dayen, executive editor of the American Prospect, was interviewed by liberal MSNBC host Chris Hayes this week. Hayes noted that the three centrist Democrats who voted against the bill that called for lowering prescription drug prices — Schrader, Rep. Kathleen Rice of New York and Rep. Scott Peters of California — are members of the House Energy and Commerce Committee.

Dayen told Hayes, "Really, what they're saying — these three members — is: If drug price reform goes in, we're not going to support this bill."

The Prospect editor was vehemently critical of Schrader, Rice and Peters, telling Hayes, "There's a stereotype of like the swing district House member who has a lot of conservative constituents and just has to trim their sails and vote against the party every so often; that's actually a fake picture of what goes on in Washington…. Peters and Rice are in safe Democratic seats. These are not swing district Democrats; they're corporate Democrats who have sold out their constituents for campaign dollars or for the promise of a future job or just because they hear more from lobbyists about how lower company profits will stifle innovation, which isn't true. Then, they hear from a single mother who has to skip medications to keep her family fed."

Watch the video here:

Evidence shows coerced drug treatment is harmful as well as wrong

A paper published by the International Journal of Drug Policy confirms what harm reductionists have been saying since the dawn of the movement: Coerced drug treatment causes more harm than good.

Researchers first executed a systematic review to locate all papers available on the PubMed, EBSCOhost and Sociological Abstract databases that investigated the impact of addiction treatment programs on HIV and overdose occurrence. Then, using the studies that employed research methods that help standardize differences in study design, the researchers conducted a meta-analysis to combine their results. (Of the remaining studies, only two reported an association between coerced treatment and HIV occurrence, and their findings were inconsistent.)

The analysis of combined studies—with subjects in China, Mexico, Thailand and Norway, as well as the United States—showed that people who underwent coerced treatment were much more likely to experience non-fatal overdoses than people who did not. People who received coercive treatment were over twice as likely to have a nonfatal overdose over the course of a lifetime, and almost four times likelier to have experienced one in the last six-to-12 months.

As National Recovery Month begins in the US, this finding should lead to soul-searching for the addiction treatment industry. But perhaps its heaviest implications in this country are for the attorneys, judges, and treatment providers who facilitate drug courts and give participants the "choice" between treatment (typically abstinence-based) or incarceration. It's well documented that people who return to drug use after periods of abstinence, including those released from incarceration, have heightened vulnerability to opioid-involved overdose because of their lowered tolerance.

"Countries including the United States continue to address substance use through compulsory abstinence-based 'drug treatment' with little consideration of the public health impact," Javier Cepeda, a professor at Johns Hopkins University Bloomberg School of Public Health and a co-author of the new research, told Filter. "This study will add to the growing body of knowledge that compulsory drug abstinence programs have limited, if any, public health benefit and should be replaced with evidence-based 'gold standard' interventions, such as methadone or buprenorphine maintenance treatment."

Anecdotes like more people dying of overdose in a single year in Delaware County, Pennsylvania than succeeding in its drug court over a decade abound, but this new paper contains far more than a single local story.

Confronted with the research, it is hard to imagine a counterargument from drug court proponents, except if they were to appeal to possible conflating variables. For instance, if drug courts were working with people who use drugs who have worse social determinants of health and are more psychosocially vulnerable, then perhaps greater nonfatal overdose rates would be expected.

However, such an argument is refuted by the fact that drug courts routinely exclude the most marginalized people who use drugs. They are designed with "low‐level, non‐violent offenders" in mind, as federal funding is contingent on not permitting people with convictions for "violent" crime, including mere gun possession, to participate.

And they are often exclusionary in other ways, like subjecting people to humiliating and racist conduct agreements.

In Leon County, Florida (which includes the state capital of Tallahassee), for example, drug court participants must sign a contract that tells them they "will NOT be permitted" to enter the treatment provider's facility (A Life Recovery Center, Inc.) if wearing pants with "underwear showing," "teeth covers" or other styles that have been the means of racist targeting.

The study is crying out to be read outside of the ivory tower. Because while coercive treatment is basically flat-earther territory in public health circles, it is sadly still the norm in most local court systems in the US.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

'Catastrophic injustice': Judge OKs Purdue Pharma bankruptcy plan that Shields the Sacklers

In a bench ruling delivered over several hours on Wednesday, a U.S. judge approved a Purdue Pharma bankruptcy plan widely criticized for giving the Sackler family immunity from civil lawsuits related to the company's drug OxyContin and and profiteering that critics say escalated the nation's opioid epidemic.

"The deal grants 'releases' from liability for harm caused by OxyContin and other opioids to the Sacklers, hundreds of their associates, as well as their remaining empire of companies and trusts," NPR explained.

In a statement condemning the development, Rick Claypool, a research director for the consumer advocacy group Public Citizen, said that "allowing the billionaires at the root of the opioid crisis to walk free while thousands of its victims are in prison is a catastrophic injustice."

"Purdue Pharma is the reason the Sackler family are billionaires, and after today's settlement they will remain billionaires," Claypool continued. "The greed of some Sacklers fueled an opioid epidemic that has killed more than 500,000 Americans, gripped millions in the claws of addiction, devastated communities across the country, and cost over $2.5 trillion."

The researcher noted that "meanwhile, on any given day, 450,000 incarcerated people are serving time for nonviolent drug crimes."

drug offenses

"The Biden administration has the authority to pursue leniency for nonviolent drug offenders, whose unnecessary and cruel incarceration must be replaced with support to help communities heal the raw wounds the opioid epidemic left behind," Claypool said.

"The administration also has the authority to continue the last administration's criminal investigation and indict any member of the Sackler family who committed crimes while pursuing opioid profits," he added. "On both fronts, the administration should exercise its authority without delay."

As Reuters detailed, the bankruptcy plan, valued at more than $10 billion, will "dissolve the drugmaker and shift assets to a new company owned by a trust rather than the Sackler family members."

Reuters continued:

The Sacklers have denied allegations, raised in lawsuits and elsewhere, that they bear responsibility for the U.S. opioid epidemic. They have said they acted ethically and lawfully while serving on Purdue's board.
The Purdue bankruptcy plan includes a $4.5 billion contribution from Sackler family members. The contribution is in the form of cash that would be paid over roughly a decade and also includes $175 million in value from relinquishing control of charitable institutions.

Judge Robert Drain of the U.S. Bankruptcy Court in White Plains, New York, who was appointed by former President George W. Bush, "provisionally approved the plan, saying he wanted modest adjustments," according to the New York Times.

Journalists live-tweeting the orally delivered ruling reported that Drain declared that "this is not the Sacklers' plan," despite the civil immunity from opioid cases being a key goal of family members.

Adam Levitin, a Georgetown Law professor specializing in bankruptcy, pushed back against Drain's criticism of reporters, academics, and lawmakers and argued that the plan aligns with what the Sacklers wanted.

"Drain's shifting the goal posts and setting up a strawman," he said. "No one informed is claiming that the Sacklers are getting criminal immunity. They're just keeping a multi-billion dollar fortune despite having wrought terrible harm to millions of people."

Brian Mann of NPR noted that although Drain said the plan wasn't defined by the Sacklers, he also acknowledged "at length that members of the family placed their wealth (which [the judge] estimates at $11 billion) offshore where there is 'a substantial issue of collectability.'"

"It is incredibly frustrating that people can send their money offshore," said Drain. The judge also highlighted the lack of apology from the Sackler family, adding that "a forced apology is not really an apology, so we will have to live without one."

Journalist Gerald Posner, author of the book PHARMA, shared various lines of the bench ruling, including Drain's point that prosecutors could pursue criminal claims against the Sacklers.

Though the Sacklers have never been charged and maintain their position that the family has no responsibility for the opioid crisis, NPR noted last week that "Purdue Pharma has pleaded guilty twice to criminal wrongdoing in its marketing of OxyContin, first in 2007 and again last year."

The outlet also reported Tuesday on Purdue Pharma's "stealth campaign" aimed at preventing a potential appeal of the bankruptcy settlement by the U.S. Justice Department.

According to Reuters, Connecticut Attorney General William Tong is also "preparing to appeal if necessary."

A federal judge says the DEA may be required to reclassify marijuana

In a concurrence Monday to the Ninth Circuit Court of Appeals three-judge panel ruling on a case about marijuana, U.S. Judge Paul Watford warned the Drug Enforcement Agency that it may soon be forced to reclassify the drug.

Marijuana is currently classified by the DEA as a "Schedule I" substance, which are "defined as drugs with no currently accepted medical use and a high potential for abuse," according to the agency's website. This scheduling gives the DEA authority to regulate the substance and can factor into criminal charges. Advocates have long sought to change the DEA's scheduling of marijuana alongside drugs like heroin, which would, in part, make it much easier for researchers to study its medical uses. The DEA previously claimed that Schedule I drugs were the "most dangerous drugs," but it removed this language in 2016.

The new ruling came in response to a lawsuit brought Dr. Suzanne Sisley of the Scottsdale Research Institute and three veterans. They sued after Stephen Zyszkiewicz, an inmate in California, and Jeramy Bowers, who takes medical cannabis, were denied in their petition to the DEA to have the drug reclassified.

The court found that this process didn't justify the court's intervention at this time. Against the government, the panel concluded that Sisley and the other petitioners do have standing to bring their case against the DEA. But they didn't go through the proper process with the DEA before bringing the suit, so for now, their request is stalled.

But in a concurrence pointed out by Gabriel Malor on Twitter, Judge Watford offered strong encouragement to the effort brought by Dr. Sisley and the others. Though they didn't go through the proper steps to force the DEA to act now, Watford said, future cases have a strong argument for reclassification and may well succeed:

I write separately to note that, in an appropriate case, the Drug Enforcement Administration may well be obliged to initiate a reclassification proceeding for marijuana, given the strength of petitioners' arguments that the agency has misinterpreted the controlling statute by concluding that marijuana "has no currently accepted medical use in treatment in the United States."

This sends a clear message to Sisley and others who would like to see the DEA change marijuana's scheduling. There's a strong case to be made that marijuana has "accepted medical use in treatment in the United States," and therefore, it shouldn't be considered a Schedule I drug by the DEA. Please, he is essentially saying, try again.

Prosecutors call on Biden to create task force aimed at reform

Decrying "tough-on-crime" policies, a group of more than 100 law enforcement leaders, mostly prosecutors, sent a letter to President Joe Biden on August 17, asking him to create a Presidential Task Force on 21st Century Prosecution by the end of the year.

On its face, it's an ambitious request, but Biden has created a multitude of new task forces during his first year in office. Presidential task forces are advisory in nature, meaning they can only make recommendations, but they are still influential. When Trump was in office, his Coronavirus Task Force effectively blocked a federal recommendation to mandate masks on public transit.

The drop in US incarceration during the early days of the pandemic has been gradually turning back into a rise. Between summer 2020 and spring 2021, the number of incarcerated people across the country shrank by just two percent. While prisons continued to release slightly more people than they locked up, county jails have been filling back up for at least most of 2021.

The people in a position to stop this are prosecutors, who decide which people get charged and with what crimes.

The letter's signatories, who include former Alabama US Attorney Joyce Vance and Westchester County, New York, District Attorney Mimi Rocah, write that this new task force should be modeled on the one former President Obama made to address police violence after Ferguson, Missouri, officer Darren Wilson killed 18-year-old Michael Brown. A 2015 report from that task force purportedly led to around 40 percent of the nation's largest police departments changing training and use-of-force practices within two years. It did not, however, lead to any reduction in the rates at which police officers kill civilians.

A Biden task force on prosecution would be located outside of the Justice Department and would study the work of reform-minded prosecutors at the local level with the hope of replicating it. Part of that work includes some top prosecutors effectively decriminalizing minor drug possession charges (and, more rarely, possession with intent to distribute) by their use of executive discretion. In these jurisdictions, people who use and sell drugs face less incarceration and discrimination due to criminal records than they would otherwise.

A report by Fair and Just Prosecution, the nonprofit that assembled the letter's signatories, detailed what the new task force hopes to address. Some of the proposed topics involve parts of the system that prosecutors can unilaterally improve, such as charging fewer people for nonviolent drug misdemeanors. Others involve the expansion of non-police emergency responder programs and alternative-to-arrest diversion programs like Law Enforcement Assisted Diversion.

In a promising twist, the report suggests that the task force lead conversations on the "efficacy and limits of drug diversion programs," which could help correct the mainstream narrative that innovations like drug courts are a preferable alternative to prosecution.

The federal government has shown little interest to date in the recent local- and state-driven trend toward reforming prosecution, which started in earnest in 2015. Under the Trump administration in particular, top federal criminal justice officials broke from the norms of their respective offices to attack prosecutors they deemed progressives.

Opting to not prosecute certain crimes has historically not been in most US attorneys' DNA. If they decline categories of cases—like when former Arizona US Attorney Paul Charlton stopped prosecuting the possession of marijuana under 500 pounds in the 2000s—they generally signal that it's other prosecutors' jobs to handle them.

But the movement has gotten the attention from influential Washington, DC think tanks like the conservative Heritage Foundation and the liberal Center for American Progress. Both Heritage and CAP serve as partisan pipelines to jobs in presidential administrations.

Virtually all of the signatories calling for the task force on prosecution are elected Democrats, and most represent the left flank of the party on criminal justice. Even so, the creation of the new task force might make moderates more comfortable with the idea of prosecutors who view their jobs more holistically, rather than hard-nosed trial warriors who pride themselves on high conviction rates and harsh sentencing.

That is especially true if it could survive in some form the next time a Republican is president. There are already prominent Republicans who support it. "We need @POTUS to lead on #cjreform. Form this task force," tweeted Brett Tolman, the executive director of Right on Crime and a former Utah US Attorney under President George W. Bush.

Many of the law enforcement leaders who signed are on record supporting safe consumption sites (SCS), including King County (Seattle), Washington, Prosecuting Attorney Dan Satterburg and Los Angeles County District Attorney George Gascon. If Biden authorizes the task force, it's safe to assume that some of the letter's signers would be at the front of the line for membership status. That may help invigorate national-level conversations about SCS as well.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

How the global drug war’s victims are fighting back

Despite significant advances made by governments around the world in humanizing drug control systems since the turn of the century, human rights abuses still seem to be taking place in the course of enforcing drug prohibitions in recent years and, in some cases, have only gotten worse.

The United States continues to imprison hundreds of thousands of people for drug offenses and imposes state surveillance (probation and parole) on millions more. The Mexican military rides roughshod over the rule of law, disappearing, torturing, and killing people with impunity as it wages war on (or sometimes works with) the infamous drug cartels. Russia and Southeast Asian countries, meanwhile, hold drug users in "treatment centers" that are little more than prison camps.

A July virtual event, which ran parallel to the United Nations High-Level Political Forum on Sustainable Development, shined a harsh light on brutal human rights abuses by the Philippines and Indonesia in the name of the war on drugs and also highlighted one method of combating impunity for drug war crimes: by imposing sanctions.

The event, "SDG 16: The Global War on Drugs vs. Rule of Law and Human Rights," was organized by DRCNet Foundation (a sister organization of the Drug Reform Coordination Network/StoptheDrugWar.org), a U.S.-based nonprofit in consultative status with the UN Economic and Social Council. The "SDG 16" refers to Sustainable Development Goal 16—Peace, Justice, and Strong Institutions—of the UN's 2030 Agenda for Sustainable Development.

Event organizer and DRCNet Foundation executive director David Borden opened the meeting with a discussion about the broad drug policy issues and challenges being witnessed on the global stage.

"Drug policy affects and is affected by many of these broad sustainable development goals," he said. "One of the very important issues is the shortfall in global AIDS funding, especially in the area of harm reduction programs. Another goal—Peace, Justice, and Strong Institutions—is implicated in the Philippines, where President [Rodrigo] Duterte was elected in 2016 and initiated a mass killing campaign admitted by him—although sometimes denied by his defenders—in which the police acknowledged killing over 6,000 people in [anti-drug] operations [since 2016], almost all of whom resisted arrests, according to police reports. NGOs put the true number [of those who were] killed at over 30,000, with many executed by shadowy vigilantes."

The International Criminal Court (ICC) has proposed a formal investigation of human rights abuses in the Philippines drug war, but the court seems hampered by a chronic shortfall in funding, Borden pointed out.

"Former prosecutors have warned pointedly on multiple occasions of a mismatch between the court's mission and its budget," he said. "Recent activity at the conclusion of three different preliminary investigations shows that while the prosecutor in the Philippines moved forward, in both Nigeria and Ukraine, the office concluded there should be formal investigations, but did not [submit] investigation requests, leaving it [up to the] new prosecutors [to do so]. The hope is [that the ICC] will move as expeditiously as possible on the Philippines investigation, but resources will affect that, as will the [Philippine] government's current stance."

The government's current stance is perhaps best illustrated by President Duterte's remarks at his final State of the Nation address on July 26. In his speech, Duterte dared the ICC to "record his threats against those who 'destroy' the country with illegal drugs," the Rappler reported. "I never denied—and the ICC can record it—those who destroy my country, I will kill you," said Duterte. "And those who destroy the young people of my country, I will kill you, because I love my country." He added that pursuing anti-drug strategies through the criminal justice system "would take you months and years," and again told police to kill drug users and dealers.

At the virtual event, Philippines human rights attorney Justine Balane, secretary-general of Akbayan Youth, the youth wing of the progressive, democratic socialist Akbayan Citizens' Action Party, provided a blunt and chilling update on the Duterte government's bloody five-year-long drug war.

"The killings remain widespread, systematic, and ongoing," he said. "We've documented 186 deaths, equal to two a day for the first quarter of the year. Of those, 137 were connected to the Philippine National Police, the Philippine Drug Enforcement Agency, or the armed forces, and 49 were committed by unidentified assailants."

The "unidentified assailants"—vigilante death squads of shadowy provenance—are responsible for the majority of killings since 2016.

"Of the 137 killed, 96 were small-time pushers, highlighting the fact that the drug war is also class warfare targeting small-time pushers or people just caught in the wrong place or wrong time," Balane said.

He also provided an update on the Duterte administration's response to ICC Prosecutor Fatou Bensouda's June 14 decision concluding her preliminary examination of human rights abuses in the Philippine drug war with a request to the ICC to open a formal investigation into "the situation in the Philippines."

In a bid to fend off the ICC, in 2020, the Philippine Justice Department announced it had created a panel to study the killings carried out by agents of the state—police or military—but Balane was critical of these efforts.

"[In the second half of 2020], the Justice Department said it had finished the initial investigations, but no complaints or charges were filed," he said. "They said it was difficult to find witnesses [who were willing to testify about the killings], but [the victims'] families said they were not approached [by the review panel]."

The Justice Department is also undercutting the Philippine Commission on Human Rights, an independent constitutional office whose primary mission is to investigate human rights abuses, Balane pointed out.

"The Justice Department said the commission would be involved [in the investigation process by the panel], but the commission says [that the] Justice [Department] has yet to clarify its rules and their requests have been left unanswered," Balane said. "The commission is the constitutional body tasked to investigate abuses by the armed forces, and they are being excluded by the Justice Department review panel."

The Justice Department review is also barely scraping the surface of the carnage, Balane said, noting that while in May the Philippine National Police (PNP) announced they would be granting the review panel access to 61 investigations—which accounts for less than 1 percent of the killings that the government acknowledged were part of the official operations since 2016—the PNP has now decreased that number to 53.

"The domestic review by [the] Justice [Department] appears influenced by Duterte himself," said Balane. "This erodes the credibility of the drug war review by the Justice Department, which is the government's defense for their calls against international human rights mechanisms."

The bottom line, according to Balane, is that "the killings continue, they are still systematic, and they are still widespread."

In Indonesia—where, like Duterte in the Philippines, President Joko Widodo (Jokowi) also declared a war on drugs in 2016—it is not only extrajudicial killings that are the issue but also the increasing willingness of the government to resort to the death penalty for drug offenses.

"Extrajudicial killings [as a result of] the drug war are happening in Indonesia," said Iftitah Sari, a researcher with the Indonesian Institute for Criminal Justice Reform, who cited 99 extrajudicial killings that took place in 2017 and 68 that happened in 2018, with a big jump to 287 from June 2019 through June 2020. She also mentioned another 390 violent drug law enforcement "incidents" that took place from July 2020 through May 2021, of which an estimated 40 percent are killings.

"The problem of extrajudicial killings [in Indonesia] is broader than [just] the war on drugs; we [also] have the problem of police brutality," Sari said. "Police have a very broad authority and a lack of accountability. There is no effective oversight mechanism, and there are no developments on this issue because we have no mechanisms to hold [the] police accountable."

Indonesia is also using its courts to kill people. Since 2015, Sari reported, 18 people—15 of them foreigners—have been executed for drug offenses.

"In addition to extrajudicial killings, there is a tendency to use harsher punishment, capital punishment, with the number of death penalties rising since 2016," she said.

Statistics Sari presented bore that out. Death penalty cases jumped from 22 in 2016 to 99 in 2019 and 149 in 2020, according to the figures she provided during the virtual event.

Not only are the courts increasingly handing down death sentences for drug offenses, but defendants are also often faced with human rights abuses within the legal system, Sari said.

"Violations of the right to a fair trial are very common in drug-related death penalty cases," she said. "There are violations of the right to be free from torture, not [to] be arbitrarily arrested and detained, and of the right to counsel. There are also rights violations during trials, including the lack of the right to cross-examination, the right to non-self-incrimination, trial without undue delay, and denial of an interpreter."

With authoritarian governments such as those in Indonesia and the Philippines providing cover for such human rights abuses in the name of the war on drugs, impunity is a key problem. During the virtual event's panel discussion, Scott Johnston, of the U.S.-based nonprofit Human Rights First, discussed one possible way of making human rights abusers pay a price: imposing sanctions, especially under the Global Magnitsky Act.

That U.S. law, originally enacted in 2012 to target Russian officials deemed responsible for the death of Sergei Magnitsky in a Russian prison, was expanded in 2016 to punish human rights violators around the globe by freezing their assets and denying them visas to enter the United States.

"In an era [when]… rising human rights abuses and also rising impunity for committing those abuses [are]… a hallmark of what's happening around the world, we see countries adopting these types of targeted human rights mechanisms [imposing sanctions] at a rate that would have been shocking even five or six years ago," said Johnston. "Targeted sanctions [like the Global Magnitsky Act] are those aimed against specific individual actors and entities, as opposed to countrywide embargos," he explained.

The Global Magnitsky program is one such mechanism specifically targeted at human rights abuses and corruption, and the United States has imposed it against some 319 perpetrators of human rights abuses or corruption, Johnston said. (The most recent sanctions imposed under the act include Cuban officials involved in repressing recent protests in Cuba, corrupt Bulgarian officials, and corrupt Guatemalan officials.)

"We've seen a continued emphasis on using these tools in the transition to the Biden administration, with 73 cases [of sanctions having been reported] since Biden took office," he noted.

And it is increasingly not just the United States.

"The U.S. was the first country to use this mechanism, but it is spreading," Johnston said. "Canada, Norway, the United Kingdom, [and] the European Union all have these mechanisms, and Australia, Japan, and New Zealand are all considering them. This is a significant pivot toward increasing multilateral use of these mechanisms."

While getting governments to impose targeted sanctions is not a sure thing, the voices of global civil society can make a difference, Johnston said.

"These are wholly discretionary and [it]… can be difficult to [ensure that they are]… imposed in practice," he said. "To give the U.S. government credit, we have seen them really listen to NGOs, and about 35 percent of all sanctions have a basis in complaints [nonprofits]… facilitated from civil society groups around the world."

And while such sanctions can be politicized, the United States has imposed them on allied countries, such as members of the Saudi government involved in the killing of U.S.-based journalist Jamal Khashoggi and in cases of honor killings in Pakistan, Johnston noted.

"But we still have never seen them used in the context of the Philippines and Indonesia."

Maybe it is time.

Phillip Smith is a writing fellow and the editor and chief correspondent of Drug Reporter, a project of the Independent Media Institute. He has been a drug policy journalist for more than two decades. He is the longtime writer and editor of the Drug War Chronicle, the online publication of the nonprofit Stop the Drug War, and was the editor of AlterNet's coverage of drug policy from 2015 to 2018. He was awarded the Drug Policy Alliance's Edwin M. Brecher Award for Excellence in Media in 2013.

This article was produced by Drug Reporter, a project of the Independent Media Institute.