Enríquez disputes impact of marijuana offenses on federal sentencing since legalization in Missouri

The extraordinary scientist-lawyer Paul Enríquez argued an intriguing problem on the effect of legalization on federal sentencing in the Eighth Circuit Friday.

I wrote in 2021 about Rewriting Nature (Cambridge U. Press 2021), the remarkable book by Enríquez, J.D., LL.M., Ph.D. (LinkedIn, SSRN), on the law and science of genome editing. On Friday, Enríquez showed that he has the chops in the courtroom, too. Court Listener has the oral argument.

Enríquez's brief states the straightforward problem:

Mr. Brandon Phillips pleaded guilty to a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 10 years' imprisonment and three years of supervised release based on his criminal history. An amendment to the Missouri Constitution, which was in effect at the time of sentencing, legalized the use of limited amounts of marijuana and mandated the retroactive expungement of most prior marijuana-related convictions in Missouri. The district court failed to consider the effects of the Missouri Constitution on Mr. Phillips's case.

Missourian approved legalization 53%-47%.
Wikipedia CC BY-SA 4.0

As Enríquez told the court, Phillips would have fared much better in sentencing on the firearm violation, perhaps a third as many years, in prison, had he been credited with expungement pursuant to the Missouri constitution as amended in 2022. Ripe for someone to grab for moot court, the case also presents a procedural dispute over preservation of objection.

To my mind, Enríquez has the better argument on the merits and made the better argument in the courtroom, forensically. (I don't say that because he's a friend, colleague, and long-ago student, but I do mention that he's a former student in the hope that some of his shine will rub off.) To my mind, this seems the sort of case where the just outcome is obvious, even if legal formalism points the other way. Doing the right thing upon such a dichotomy is why we pay judges the big bucks and why we won't, I hope, commit justice to AI anytime soon.

What the court will do, though, remains to be seen. Getting hung up on formalism is a signature move for the federal bench. To my estimation, the judges' questions point to a split with the deciding third vote as yet inscrutable.

The case is United States v. Phillips, No. 23-2678 (8th Cir. oral argument Sept. 27, 2024) (Justia). Enríquez practices with Convington.

It'd Be a Lot Cooler If You Did.Or, Marlan on Psychedelics and Decriminalization

Mary Jane's in Eugene, Oregon, 2017, since closed.  (Rick Obst CC BY 2.0.)

My colleague Dustin Marlan has published Beyond Cannabis: Psychedelic Decriminalization and Social Justice in 23:3 Lewis and Clark Law Review.  Prof. Marlan is a compelling voice in intellectual property scholarship, lately especially, trademark and the right of publicity.  Here he turns his attention to a libertarian priority.  The abstract:

Psychedelics are powerful psychoactive substances which alter consciousness and brain function. Like cannabis, psychedelics have long been considered prohibited Schedule I substances under the Controlled Substances Act of 1970. However, via the powerful psychological experiences they induce, psychedelics are now being shown to be viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the well-being of healthy individuals. In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”) — a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization — eliminating criminal penalties for, at a minimum, the use and possession — of psilocybin and other psychedelics? This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes a reframed justification rooted in principles of social justice.

The article is available on SSRN and from the Lewis & Clark Law Review.  You know, in Oregon.

Dazed and Confused (1993)