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)

SCOTUS, climate change, drug addiction, immigration highlight law and policy issues at UMass colloquium

Today at the Fifth UMass Interdisciplinary Legal Studies Colloquium in Boston, scholars talked about a range of intriguing work, from politics to climate change to drug legalization, being done across the University of Massachusetts campuses—Amherst, Boston, Dartmouth, and Lowell, and Law (at Dartmouth) and Medical (at Worcester).  Here’s a taste.

View of Boston from One Beacon Street today.  "Back Bay is called 'Back Bay' for a reason," UMass Dartmouth Professor  
Chad McGuire said, referring to reclaimed land that is threatened by rising sea levels.

Law and Policy Inside the Beltway
Panel 1—Moderated by yours truly

Queer Sacrifice in Masterpiece Cakeshop, Jeremiah Ho, UMass Law.  Professor Ho explicated his theory of “interest convergence,” and how a lack thereof explains the result in the U.S. Supreme Court’s recent decision in the LGBTQ-rights cakeshop case.  His research shows how images—sometimes literally—of gay identity have informed public and judicial perception of LGBTQ rights cases.  Three more cases lie on the horizon, in the Court’s next term, Ho said, so stay tuned.   Meanwhile preview his "Queer Sacrifice" work, just out in the Yale Journal of Law and Feminism, at SSRN.

Can Presidents Influence Public Attitudes Toward the Supreme Court? Evidence from a Survey Experiment, Paul M. Collins, Jr. (blog), Department of Political Science, UMass Amherst.  Collins’s long-term research digs deep into how statements and action by the President of the United States exert influence over public perception of the U.S. Supreme Court and its decisions.  What the President says matters; consider, Collins proffers, the White House has a whole office dedicated to SCOTUS spin.  Collins also notes that low public knowledge of the Court is a factor in allowing public opinion to be influenced by forces external to the Court.  I can’t help but think about the Court’s intransigence on cameras and public access.  Anyway, Collins has discovered that the public is more easily influenced on “low salience” issues, but less so on “high salience” (I’d say “hot button”) issues, such as immigration.

On the Supreme Court of the United States of America (and Congruent Agencies and Ministries in the Term of President Donald Trump), Judge Francis Larkin, UMass Law.  Judge Larkin shared observations of recent events in President-Court interaction.  He recalled FDR’s Court-packing plan, relative to its recent resurgence in politics (e.g., WaPo).

Forcing Disclosure, Justine Dunlap, UMass Law.  Professor Dunlap is looking at mandatory disclosures under Title IX, especially faculty duties.  She observes that the evolution of Title IX over recent decades, under administrations from both sides of the aisle, have fairly sought to respond to a real problem of unredressed sexual harassment and assault on college campuses.  But the responses have not always been well tuned.  And mandatory reporting, however well intentioned, can put faculty in the impossible bind of having to betray student trust.  (Professor Julie Baker in Q&A aptly noted also that the consequences of ill-tuned reporting schemes for accused perpetrators are not always conducive to dispute resolution or justice.)  Dunlap talked about a system being implemented at the University of Oregon that contemplates a third class of potential “reporter”—rather than all or nothing, a “student-directed reporter.”

Recovery, Resiliency, and Equality in Economic Development
Panel 2—Moderated by Professor Justine Dunlap, UMass Law

Opening for Business: Tax-Haven Economy and the State of Exception in Puerto Rico, Jose Atiles, Department of Political Science, UMass Amherst.  Professor Atiles is working on Puerto Rico and U.S. development strategies.  He explained that there are two prevalent approaches to development policy concerning the island, one the “blank canvas” approach, which encourages recovery investment on the selling point that, more or less, my words: there’s nothing there at present; two the “PR is open for business” approach, which seeks to exploit the island’s legal status as a tax haven.  Both of these representations are animated by a “neoliberal-colonial rationality,” and that troubling mindset is reflected in the law that facilitates these strategies.

I’m reminded of the colonial terra nullius doctrine with respect to the blank canvas, and the local-policy-characteristic Everett casino debate with respect to “open for business.”  Puerto Rico and its people are not our offshore plaything.  In Q&A, I asked Atiles what it would take for us to start thinking about PR more like we do Missouri.  Statehood and independence each have advantages and drawbacks, which he explained summarily; what won’t save PR, he said, is the status quo.

A “Least Regrets” Framework for Coastal Climate Change Resiliency Through Economic Development, Chad McGuire and Michael Goodman, College of Arts and Sciences, UMass Dartmouth.  Professor McGuire continues his renowned work on environmental conservation and climate change, and now he’s brought public policy numbers wizard Professor Goodman (also president of the UMass Dartmouth Faculty Senate) onto the team to look at the economics.  They’re attacking the problem of aligning shorter-term economic incentives with the longer-term public interest in saving the human race from extinction.

I just saw Dan Gardner on The Daily Show talking to Roy Wood Jr. (video embedded below) (let me remind everyone that I shook Roy’s hand in East Providence) talking about how our “caveman” brains don’t well process the threat of climate change because it’s too abstract, that we need more urgent messaging.  McGuire and Goodman have it.  As I’m wearing a sweater in May, McGuire observed: “Spring has become less of a thing, and winter moving into summer is becoming more of a thing.”  We’ve lost 15-30 days of winter in New England, he shows with data, and seasonal transitions are becoming more abrupt.  Then he directs us toward the view of Boston from our huge glass windows here in the 32nd floor of One Beacon Street.  “Back Bay is called ‘Back Bay’ for a reason,” McGuire said.  Boston sits on filled-in bay.

At lunch, McGuire told me about rubber buffers that run through Boston streets to absorb shifts in the aqueous earth beneath.  And he told me about the latest alarming findings from the Ross Ice Shelf.  Our society has invested a great deal in developing low-lying land, and we’re going to have reconcile that policy with our climate game.

Human Rights Responses to Economic and Social Inequalities—A Book Proposal, Gillian MacNaughton, School for Global Inclusion and Social Development, UMass Boston.  For my money—both figuratively and literally—Professor MacNaughton’s work is what we need to save humanity from catastrophe—after and assuming we figure out how to survive climate change.  MacNaughton takes what we know and bemoan about inequality of wealth and opportunity in the United States and runs writ large with the problem.  As she wrote in her abstract: “The Global Wealth Report 2017 reveals that the wealthiest 1% of the global population owns 50% of global assets, while the poorest 50% owns less than 1%.”  Building on the U.N. Sustainable Development Goals, she plans to propose putting some punch behind international treaty guarantees of social and economic equality, such as we might start to address this problem on the global level.  I’ve often lamented that our increasingly disparate economic stratification will be our undoing in the United States if we don’t address it.  It’s worth being reminded how much more desperate the situation already is worldwide.  See also Professor MacNaughton's recent co-edited book, Economic and Social Rights in a Neoliberal World (Cambridge University Press 2019).

Drug Use and Abuse, and the Criminal Justice System
Panel 3—Moderated by Professor Julie Baker, UMass Law

Is Marijuana the Gateway Drug? Maybe Not, But Its Legalization Could Be, Nikolay Anguelov, College of Arts and Science, UMass Dartmouth.  Professor Anguelov is known to many of my readers and former students as the author of the 2015 book, The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society (CRC Press) (Amazon).  I have heard him speak many times to awestruck and sometimes squirming audiences about the connection between their affordable clothing and Bangladesh waterways poisoned with dye and arsenic.  Anguelov is more recently author of From Criminalizing to Decriminalizing Marijuana: The Politics of Social Control (Lexington Books 2018) (Amazon).  Anguelov is now fine-tuning his formidable research into marijuana use.  His early data invite the conclusion that legalization—which I as a libertarian have favored—might be contributing to the opioid epidemic at least by “contributing to the cultural normalization of drug use and experimentation.”  Ruh-roh, Shaggy.  This is going to require further research, and I’m anticipatorily squirming in my H&Ms.

Recovery Coaches in Opioid Use Disorder Care, Matthew Maughan, UMass Medical.  When opioid addiction turns to recovery, attorney Matthew Maughan is the policy guru to turn to.  Informed by his multifaceted experience and research, he explained the role and peculiar success of the “recovery coach.”  It might be awkwardly unorthodox in terms of developing a large-scale model, but sometimes a block grant for an activity tailored to a person’s specific needs offers the best hope for recovery and might as well be cost effective.  Maughan recounted the story of a recovery accomplished through mental clarity achieved on the water on a kayak, under the guidance of a recovery coach.  That’s got to cost less than any bill I’ve ever gotten from a medical clinic.

Locating Cannabis Equity: Defining Areas Impacted by Drug Criminalization, Michael Johnson, Professor and Chair, McCormack Graduate School, UMass Boston, and Jeffrey Moyer, doctoral candidate in public policy, UMass Boston.  Moyer is working with Professor Johnson to study the intersection of enforcement and anti-discrimination.  Specifically, he asks whether the Massachusetts “Cannabis Control Commission’s use of a race-neutral variable is effective in selecting areas disproportionately impacted by criminalization.”  Part of the work has entailed mapping all drug arrests, which generates some compelling graphics when overlaid with demographic data.  I am reminded of being a journalism intern at WJZ-TV in Baltimore in the early 1990s, when we made an analog map—this was when we were still working on DOS-based computers—literally putting color pushpins in a map of Baltimore to look at the coincidence of murders with factual and demographic elements.  That was a time when we were first talking about the problem of race and policing “where the crime is.”  We also walked five miles to school, uphill both ways.

Moyer shows analysis of geographic data on police enforcement, obtained in part through a public record request.

To Plea or Not to Plea: A Virtual Simulation of Plea-Bargain Scenarios, Miko M. Wilford, Psychology Department, UMass Lowell; Annabelle Frazier, doctoral candidate in applied psychology, UMass Lowell; Kelly Sutherland, doctoral candidate in applied psychology and prevention science, UMass Lowell.  With doctoral candidates on a new applied psychology track at UMass Lowell, Professor Wilford is taking a behavioral look at plea bargaining, that irksome feature of the criminal justice system that we don’t like to talk about, even while we know it results in some guilty pleas calculated to avert draconian outcomes (my take).  Really they’re looking at the research of plea bargain research, trying to refine how we learn about people's decision-making processes in these high-stakes circumstances.  Perhaps no surprise once you think about it, it is difficult to simulate having so much at stake with volunteers in psychology-lab experiments.  The team is working on new, high-tech models using animations to engender empathy and generate better results.  See more at the project website, Pleajustice.org.

Personal Rights at the Borders

Panel 4—Moderator: Misty Peltz-Steele, UMass Law

Controlling Asylum: A Genealogical Analysis of Gender and Race Intersectionality, Phil Kretsedemas, College of Liberal Arts, UMass Boston.  Professor Kretsedemas is studying the status of domestic violence survivors and Latin American asylum seekers relative to Matter of A-B, an AG-Sessions opinion “that dramatically curtails asylum protections for survivors of domestic violence, and for many other people who have been persecuted by non-state actors.”  A U.S. District Court has lately pushed back on Sessions’s conclusions, Kretsedemas said, as he investigates the problem from critical dimensions of gender and racial equality.  Kretsedemas’s approach is further informed by comparative law, as he draws on parallel legal perspectives from foreign tribunals, including the U.K. House of Lords, and from parallel cultural perspectives, such as Guatemalan views on gender roles within families.  Present policies, focusing for example unduly on familial cohesion, have gravely injurious impact, for example failing to protect women from female genital mutilation.  Kretsedemas locates these policies in a context that includes family separation, though the latter issue has garnered greater public attention.

Troubling Bodies: The Office of Refugee Resettlement and the Unaccompanied Pregnant Teen, Shoshanna Ehrlich, College of Liberal Arts, UMass Boston.  Also examining a perhaps under-recognized issue within our vast immigration policy debate, Professor Ehrlich is studying the federal government’s “literal refusal to release [young women] from . . . custody so they may access abortion care,” plainly violating their civil rights, Ehrlich asserts.  Even the U.S. Government waived argument in the courts as to whether the teens involved here enjoy U.S. constitutional rights.  Yet in government memos discovered in ACLU litigation, Ehrlich shared in her presentation, Scott Lloyd, director of the Office of Refugee Resettlement (ORR), opined that abortions desired even by teens impregnated by rape are not in the young women’s best interests.  Lloyd was removed from his post and “transferred to HHS’s Center for Faith and Opportunity Initiatives,” Rolling Stone reported in November 2018.  He was later summoned to testify in Congress about family separations, Politico reported in February 2019.  Ehrlich told of interviewing parents the government separated from their children, and the trauma that resulted, wondering how the government could at the same time justify refusing abortions on the rationale that mothers should not be separated from their unborn children, despite their personal circumstances and decisions.