Cannabis reform efforts notched numerous victories in the first half of 2023, with Delaware and Minnesota becoming the 22nd and 23rd states, respectively, to legalize adult-use marijuana and Kentucky becoming the 38th in the nation to approve a medical marijuana program.
The Marijuana Policy Project, an advocacy organization that has pushed for cannabis policy reform in several states, said in a recent announcement that 2023 was "shaping up to be another landmark year" for marijuana legalization. But the first half of the year also saw voters in Oklahoma roundly reject a referendum to legalize recreational marijuana during a special election in March, while Virginia lawmakers failed to pass legislation to regulate cannabis sales, despite decriminalizing the drug for adult possession and use two years ago. Here are some of the victories and setbacks for cannabis legalization so far this year. 3 More States Approve Adult-Use, Kentucky OKs Medical Minnesota Gov. Tim Walz in May signed a bill to allow sales of recreational cannabis and create a tax structure for the drug. The law took effect June 30 and made Minnesota the 23rd state to legalize adult-use cannabis. H.F. 100 imposes a 10% gross receipts tax on the sale of cannabis products, to be paid by the retailer. The bill also levies the 10% tax on someone who "receives cannabis products for use or storage" in Minnesota. Walz said in a statement at the time that the legalization would stimulate Minnesota's economy. "By legalizing adult-use cannabis, we're expanding our economy, creating jobs and regulating the industry to keep Minnesotans safe," he said. Minnesota's legalization came on the heels of a similar reform win in Delaware, where the governor allowed a pair of bills to become law in April without his signature. H.B. 1, which removes all penalties for personal use and possession for people over age 21, and H.B. 2, which creates a regulated market for adult-use cannabis under the ambit of a new Office of Marijuana Control Commissioner, had been approved by the state Legislature with majorities large enough to overcome a veto. Gov. John Carney, a Democrat, said in a statement at the time that while he supports medical cannabis and Delaware's decriminalization law, he believes legalization of recreational cannabis is "not a step forward," but that prolonging debate won't serve Delawareans. "I want to be clear that my views on this issue have not changed," Carney said in the April statement. "And I understand there are those who share my views who will be disappointed in my decision not to veto this legislation. I came to this decision because I believe we've spent far too much time focused on this issue, when Delawareans face more serious and pressing concerns every day. It's time to move on." Adult-use sales in Maryland commenced on the first day of July, with approximately 100 dispensaries across the state up and running, the Maryland Cannabis Administration, the state's cannabis regulator, announced June 30. The announcement comes less than two months after Gov. Wes Moore signed into law a bill to launch regulated sales of adult-use marijuana beginning in July and tax them at a 9% rate, following voters' overwhelming approval of legalization on Election Day last year. Maryland's adult-use legalization ballot measure, Question 4, passed with 67% of the vote. But other than including an effective date of July, the constitutional amendment had few details about how the market would be regulated. The entire amendment consisted of two sentences — one creating the right of adults 21 and over to possess and use cannabis, and the other directing the General Assembly to establish a legal structure for regulating and taxing cannabis. The state Legislature responded by writing and passing S.B. 516, which established the MCA to oversee the industry. "The administration has developed public and consumer education materials to encourage informed, responsible, and safe cannabis use and will continue to roll out a campaign in the coming weeks and months," said MCA Deputy Director Dawn Berkowitz in a June 30 statement. Kentucky became the 38th state to legalize medical marijuana in March when Gov. Andy Beshear signed legislation into law approving the creation of a state-regulated program. Beshear announced the signing one day after the state's House of Representatives approved the bill in a 66-33 floor vote and two weeks after the state Senate approved it in a 26-11 vote. Just before signing the bill at a news conference, Beshear called it "historic," and noted that the people of the state have been pushing for it for years. "These folks want and deserve safe and effective methods of treatment," he said at the news conference. "We needed legislative action, and last night the General Assembly delivered." In a statement, Beshear added that the bill is aimed at reducing Kentuckians' reliance on addictive opioids while providing them with relief from severe and chronic pain. "In November, I signed an executive order to help Kentuckians with certain medical conditions, like our veterans suffering from PTSD, find safe and effective relief through medical cannabis," Beshear said in the release. "Now, I am finally able to sign this legislation into law and fully legalize medical cannabis — something the majority of Kentuckians support." Okla. Voters Say No; Lawmakers in Texas and Virginia Punt Oklahoma voters in March decisively rejected a referendum to legalize recreational marijuana and tax and regulate its sale during a special election. Voters rebuffed the legalization measure, designated State Question 820, with 62% of the electorate voting against it. In rejecting recreational legalization, Oklahoma followed the lead of Arkansas, North Dakota and South Dakota, each of which rebuffed proposals to bring the states from medical-only marijuana use to full legalization on Election Day last November. "Oklahoma's wholesale rejection of marijuana legalization is titanic, given the context," Luke Niforatos, executive vice president of the anti-legalization advocacy group Smart Approaches to Marijuana, said at the time. "This makes now four out of six states rejecting legalization over the past year. It's unprecedented in the modern era of marijuana ballot measures." The repudiation also indicates that Oklahomans oppose liberalizing the state's marijuana laws further after the state legalized medical cannabis by ballot referendum in 2018, with 57% of voters approving the measure. Since then, the industry has been regulated by the Oklahoma Medical Marijuana Authority, or OMMA, the same agency that would have been tasked with overseeing adult-use cannabis if S.Q. 820 had passed. Cannabis has been legal for personal use and possession in Virginia since 2021, but the state has not yet established a regulated marketplace. Republicans in Richmond have generally opposed cannabis reform, with Gov. Glenn Youngkin saying his priority is reining in unregulated sales of hemp-derived cannabinoids. A cannabis regulation bill passed the Democrat-controlled state Senate earlier this year on a largely party-line 24-16 vote, with two Republicans joining the Democratic majority to approve the bill and no Democrats voting against it, only for it to die in a GOP-controlled House of Delegates Subcommittee. The bill, S.B. 1133, would have regulated the state's cannabis market under a new Cannabis Control Authority and included provisions governing the packaging of products containing Delta-8 THC. It would have also imposed a 21% excise tax and allowed local municipalities to levy their own 3% tax. "It's unfortunate that the Youngkin administration has yet to get on board with taking control of Virginia's marijuana market," JM Pedini, executive director of the Virginia chapter of legalization advocacy organization NORML, told Law360. "Only through commonsense regulation allowing for the legal, licensed commercial production and sale of cannabis can states ... best address adult consumers' demand while ensuring product safety and keeping marijuana largely out of the hands of young people," Pedini added. "The lack of legal access in the Commonwealth has not only led to an ever-expanding illicit market, but continues to put public health and safety at risk." Finally, in Texas, lawmakers considered proposals to decriminalize simple possession of cannabis and to expand the state's medical low-THC program, both of which were approved in the state House of Representatives only to die in the Senate. The decriminalization bill, H.B. 218, authored by Democratic Reps. Joe Moody, Harold Dutton and Rafael Anchía and Republican Reps. Charlie Geren and Briscoe Cain, was approved by the House on a vote of 87-59, but its companion bill failed to get any traction in the other chamber before the session closed. The bill would have amended the state code to make possession of an ounce or less of cannabis a Class C misdemeanor, which does not come with a potential prison sentence. A separate bill that would have allowed physicians to prescribe low-THC oil for any condition for which they would ordinarily prescribe opioids similarly passed the House, but ultimately failed. Texas does not have legalized medical marijuana, but does allow qualifying patients to use low-THC oil for certain conditions. The legislation, H.B. 1805, was approved by the House on a 127-19 vote and included a provision that the state's health regulators could add another "debilitating medical condition" to the list of qualifying conditions.
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As States Purge Medicaid Rolls, Legal Aid Groups Step Up North Carolina resident Anthony Brooks spent the last few weeks rushing to schedule doctor's appointments and procedures to treat his chronic heart problems. The 57-year-old is set to lose his health care coverage through Medicaid at the end of the month, so he is racing to set up surgery to implant a defibrillator his doctors said Brooks needs. "I can't afford insurance," said Brooks, who worked as a traveling home health aide for the elderly until he suffered a heart attack last September. "This is devastating to me." Meanwhile, in Florida, Gillian Sapia was shocked when her 5-year-old daughter Penelope's occupational therapist texted her the day before a scheduled session in May to tell her Penelope was no longer covered by Medicaid. Penelope, who has been on Medicaid her whole life, has a rare metabolic disorder called classic galactosemia, as well as other health conditions. After the message from her daughter's therapist, Sapia began a frustrating pursuit to get answers from the state's Department of Children and Families. "I spent like a week trying to get somebody, and it was just hours and hours of phone calls," Sapia said, only to eventually receive conflicting information. Brooks and Penelope are among the millions of Americans who have recently faced losing their coverage as states have started to review eligibility for the first time since 2020. During the COVID-19 pandemic, the federal government prohibited states from kicking people off Medicaid because of a "continuous coverage requirement" linked to the federal health emergency. But that requirement ended March 31, allowing states to once again start cutting Medicaid rolls. More than 1.6M Have Lost Medicaid Coverage States are reviewing Medicaid recipients' eligibility now that pandemic-related protections have ended, resulting in many people losing coverage. By Number Florida 302,556 Arizona 148,637 Washington 115,963 Arkansas 110,436 South Carolina 107,510 Indiana 106,669 Pennsylvania 96,810 Ohio 94,368 Idaho 67,819 Virginia 53,353 Kansas 51,487 Colorado 50,908 Connecticut 46,140 West Virginia 42,626 Massachusetts 35,533 Maryland 34,675 Kentucky 34,124 Nevada 31,176 Oklahoma 27,977 Iowa 19,680 New Hampshire 17,112 South Dakota 16,078 Montana 15,471 Nebraska 9,662 Vermont 5,852 District of Columbia 3,011 Alaska 2,806 Rholde Island 2,274 Georgia 1,659 Both Brooks and Gillian Sapia turned to legal aid organizations for help.
Across the country, nonprofit legal groups are working to raise awareness about the changes, help people appeal coverage terminations and educate beneficiaries about their rights. Attorneys report that as states undertake the massive review, beneficiaries are experiencing confusion, difficulty getting answers and processing errors. "This is a very complex process that states have to implement," said Cassidy Estes-Rogers, an attorney and program director with the Charlotte Center for Legal Advocacy, the North Carolina organization Brooks went to for guidance. As renewal paperwork has started to go out, "at the beginning of the month, we see a huge volume of calls with just absolutely confused people." Medicaid rolls skyrocketed during the pandemic, with nationwide enrollment growing by 21.2 million people, a 30% increase, from February 2020 to December 2022, according to the health policy nonprofit KFF. During the public health emergency, Medicaid recipients did not need to renew their eligibility. And many newer enrollees are not familiar with the renewal process, Estes-Rogers said. People generally need to renew coverage yearly and may have to fill out forms with information about their income and other criteria. Brooks became eligible for Medicaid during the public health emergency. But when his eligibility was recently reviewed, he learned that his monthly Social Security disability income put him $12 over the income limit. "I was … astonished," Brooks said. Under a Medicaid expansion law that was approved in North Carolina earlier this year, but has yet to take effect, Brooks would be eligible to remain covered. In the meantime, however, Brooks said the Charlotte Center for Legal Advocacy has been helping him navigate the system and look for alternative coverage. States are approaching the Medicaid redeterminations differently, with varying timelines and processes. In Florida, the state has said it will delay determinations for vulnerable groups — such as those under age 21 diagnosed with medically complex conditions — until the end of the review process. Despite that, "we're hearing from parents of children with very complex, serious medical conditions — the kinds of conditions that cannot go a day without coverage," said Miriam Harmatz, advocacy director and founder of the Florida Health Justice Project. Florida resident Sapia said Penelope's medical needs include anti-seizure medications, regular lab work, and occupational and speech therapy. When her Medicaid was terminated, Penelope was undergoing assessment for new seizure activity and kidney dysfunction. Sapia, a nurse who is now Penelope's full-time caregiver, said she is very organized about her daughter's care and knew about the redetermination process months ago. Despite her best efforts, however, Sapia said she never got notice from the state that Penelope's coverage was being terminated. After attorneys with the Florida Health Justice Project got involved with her case, she said she received a call informing her that Penelope's coverage was back in place. But in the three weeks her daughter went without coverage, Sapia said she paid roughly $2,000 in medical expenses out of her own pocket. Sapia said she never received a straight answer from the state about why her daughter's coverage initially ended. "They danced around it," she said. Mallory McManus, deputy chief of staff for the Florida Department of Children and Families told Law360 the agency could not comment on a specific case, but that recipients are notified of ineligibility either through email or mail, depending on how they have chosen to be contacted. McManus said "safeguards are in place" during the appeals process if someone believes their coverage was terminated in error. "Coverage is reinstated during this review if the hearing is requested before coverage ends, or retroactively applied if the appeal concludes with a reinstatement of benefits," the deputy chief said, adding that some children with medically complex conditions are having their eligibility reviewed now if "a parent initiated a review early." While most states are planning to take at least a year with what's known as the Medicaid unwinding, Arkansas lawmakers in 2021 decided the state would complete the process within six months. The state started sending renewal letters in February, and so far, more than 110,000 people have lost their coverage, according to state data. "The beginning of March, we were already inundated with calls," said attorney Trevor Hawkins, leader of the economic justice workgroup at Legal Aid of Arkansas. By the time someone contacts Legal Aid, he said they are often "frantic or about to give up." "We really have to hit the ground running as soon as we talk to someone," Hawkins said, adding that people have had their coverage ended without receiving notice. Conflicting information is a big issue in the process, said Trevor Townsend, a managing attorney in the public benefits section at the Center for Arkansas Legal Services. He pointed to one client who reported receiving two Medicaid coverage notices within a week, each with different income findings for the family. Arkansas has among the nation's highest rates of "procedural terminations" — where someone is cut from Medicaid for something like not returning a form — with more than 80% of disenrollments being procedural. "Some of those folks may have made the decision not to return the [paperwork] just because they knew that they weren't eligible, but I suspect a large portion of those just got tripped up in this process," Townsend said. Nationally, more than 70% of terminations are for procedural reasons, according to KFF. That has raised alarms among federal officials. In a letter to governors last month, U.S. Department of Health and Human Services Secretary Xavier Becerra wrote he was "deeply concerned with the number of people unnecessarily losing coverage, especially those who appear to have lost coverage for avoidable reasons that state Medicaid offices have the power to prevent or mitigate." A spokesman for the Arkansas Department of Human Services said many people "simply will not return their packet because they are aware that they no longer qualify because of their change in circumstances." "A closure for procedural reasons does not mean that the packet was not received or that the beneficiary was unaware of this need to renew," said spokesman Gavin Lesnick. "Extensive efforts have been made — and are continuing to be made — to ensure that Medicaid recipients know what to expect." The state mails renewal notices 90 or 120 days before they are due, depending on the coverage type, as well as reminder notices about 45 days before renewals are due, he said. The state also issues text messages and emails when notices go out. Lesnick said that whenever possible, "eligible beneficiaries have their coverage renewed through an automated process" rather than requiring them to submit new information. He added that the state prepared for the end of the public health emergency for more than a year, including running a campaign to ensure people's contact information was updated. Legal Groups Work To Spread Word, Keep Eyes on States Around the nation, legal organizations are working to connect people with help through social media, advertising and community outreach efforts. Maryland Legal Aid, for instance, started a series of social media posts called "Medicaid Mondays," said Jennifer Lavella, the organization's director of marketing and communications. It also ran an advertising campaign on Facebook and Instagram that reached at least 30,000 people. Groups are also monitoring states' compliance with legal requirements and providing feedback to Medicaid agencies. Legal Aid Services of Oklahoma has worked to keep the lines of communication open with the state Medicaid director, said staff attorney Dianna Berry. About 300,000 Oklahomans are expected to lose their coverage during the unwinding. "We're monitoring everything that the state is doing because we know that this is going to have a significant impact on a lot of individuals, and we want to try to minimize that," and ensure that people who are still eligible remain covered, Berry said. It's vital for people to understand their rights in the process, said Majesta-Doré Legnini, an Equal Justice Works health justice fellow with the Legal Aid Justice Center in Charlottesville, Virginia. Legnini has a medical-legal partnership with VCU Health System's emergency department in which she counsels patients on legal issues. She's encountered many people who mistakenly believe that they're automatically losing their coverage. "It's really important that people know that they are not without options when dealing with Medicaid," Legnini said. Sapia said she felt "like a horrible mom" when her daughter lost coverage. Before the Florida Health Justice Project attorneys looked at the case, she thought she must have made some kind of mistake. The relief Sapia felt when she got the legal help she needed, she said, was almost beyond words. "I can't even describe how grateful I felt," Sapia said. An engineering firm that assisted Flint, Michigan, in its catastrophic attempt to change its drinking water supply has reached a confidential settlement in principle with a class of city residents and individual plaintiffs to resolve all federal and state negligence claims. Lockwood Andrews & Newnam PC and its parent corporation, the Leo A. Daly Company, requested a 45-day stay in the proceedings to finalize the terms of the agreement stemming from the city's water crisis that began in 2014, according to a joint filing Thursday in the Eastern District of Michigan. "Plaintiffs and the LAN defendants wish to finalize the settlement without burdening this court with additional filings and without incurring unnecessary litigation expenses in the interim," the filing said. Lead counsel for LAN said in a statement Friday that the companies were "pleased with the settlement, which will allow LAN to put this matter behind them and focus on their future." "We believe this will finally bring closure for the state, plaintiffs and LAN," said Wayne B. Mason of Faegre Drinker Biddle & Reath LLP. "LAN maintains it was never responsible for any of the issues related to the Flint matter, and further litigation would not be productive for any party." Co-lead class counsel, Theodore J. Leopold of Cohen Milstein Sellers & Toll PLLC, declined to comment Friday and attorneys for the individual plaintiffs did not immediately respond to requests for comment. The settlement in principle comes a week after class plaintiffs filed briefs opposing summary judgment arguments from LAN, its parent company, and Veolia North America, saying the engineering firms had a duty to warn Flint residents that the drinking water was unsafe and they should not escape professional negligence claims. Veolia North America is not part of the potential settlement and the stay of court proceedings does not apply to it, according to Thursday's filing. Counsel for VNA did not immediately respond to a request for comment Friday. In arguing for summary judgment in May, the engineering firms said the professional negligence claims — the only claims left in the litigation — should be dismissed because the companies did not have a direct relationship with city residents and therefore could not have had a duty of care. The firms argued they had a relationship with the city, which was their client. Residents countered that LAN did have a relationship to the class plaintiffs based on its engineering work for the city before and during the Flint water crisis. Plaintiffs argued Michigan law is clear that a professional's duties are not limited to clients and said VNA had a responsibility to residents because Flint hired it to investigate various quality issues. The city was in dire financial straits and going through a string of state-appointed emergency managers when it decided to leave its longstanding Detroit Water and Sewerage District hookup, which took water from Lake Huron, and go instead to the Flint River. In August, a jury in Ann Arbor failed to reach a verdict after a six-month trial. It was the first bellwether trial involving LAN and VNA. In December, LAN agreed to four separate settlements with children who alleged the company's actions during the drinking water source switch contributed to a lead contamination catastrophe that poisoned them. The residents and individual plaintiffs are represented by Theodore J. Leopold, Emmy L. Levens and Trent Rehusch of Cohen Milstein Sellers & Toll PLLC, Michael L. Pitt of Pitt McGehee Palmer Bonanni & Rivers PC, Hunter Shkolnik of Napoli Shkolnik PLLC and Corey M. Stern of Levy Konigsberg LLP. Leo A. Daly Company and Lockwood Andrews & Newnam are represented by Wayne B. Mason, Travis S. Gamble, S. Vance Wittie and David C. Kent of Faegre Drinker Biddle & Reath LLP and Philip A. Erickson and Rhonda Stowers of Plunkett Cooney. Veolia North America is represented by James M. Campbell and Alaina N. Devine of Campbell Conroy & O'Neil PC and Michael A. Olsen of Mayer Brown LLP. The cases are In re: Flint Water Litigation, case numbers 5:16-cv-10444 and 5:17-cv-10164, both in the U.S. District Court for the Eastern District of Michigan. The Federal Bureau of Prisons has failed to punish administrators of a high-security federal penitentiary in Illinois for what have been described as acts of torture and a culture of "rampant racism," according to a report released Thursday by advocates for inmate rights. An 18-month investigation into the Special Management Unit, or SMU, in the U.S. penitentiary in Thomson, Illinois, detailed what accounts from more than 120 prisoners indicate were acts of "extreme physical and psychological abuse" at the hands of staffers and fellow inmates, according to the report on the results, titled "Cruel and Usual." The BOP shut down the unit in February following reports of abuse and after pressure from elected officials, but the bureau has yet to bring disciplinary or any other actions against anyone responsible, the report says."The complete lack of any accountability is astounding," said Jacqueline Kutnik-Bauder in a statement. She is the deputy legal director of the Washington Lawyers' Committee for Civil Rights & Urban Affairs, a nonprofit that worked on the report alongside lawyers from Latham & Watkins LLP, Uptown People's Law Center and Levy Firestone Muse LLP. "As far as we can tell, not one person has been disciplined or faced criminal charges related to the abuses in the special management unit," Kutnik-Bauder added in the statement. More than 40 attorneys and legal staffers worked on the investigation, which centered on interviews with SMU inmates and the review of over 1,000 pages of prison records that corroborated most of the inmates' accounts. Prisoner Kareem Louis said he was forced into a cell with someone prison staffers knew was violent. The cellmate stabbed Louis in the hands, back, arms and neck, then raped him while he was unconscious, according to the report. The report also cited another inmate, Daryl Hickson, who recalled objecting to his cell assignment because of a conflict with his cellmate. The situation didn't end well. "You either kill or be killed," a white guard told him, according to the report. "You're going back in that cell to get killed, [n-word]." After Hickson continued to complain, officers shackled him, immobilized all four of his limbs on a stretcher, and left him that way for hours, he recounted. A prisoner identified in the report only by initials, J.B., is cited as saying he attempted suicide nine times while being held in the SMU. J.B. reportedly said prison guards restrained him to a chair for 24 hours and denied him food, water and access to a toilet after he told them he had swallowed an excessive amount of pills. The report further cites Inmates who reported being regularly placed in tight four-point restraints for hours, a practice that left permanent scars on their wrists, ankles and stomachs — informally known as "Thomson Tattoos." Multiple inmates reported being beaten and sexually assaulted while in restraints. In its recommendations, the report urged the BOP to strictly limit and monitor the use of restraints. It also called for the U.S. Department of Justice to impose external, independent oversight. According to the report, more than 165 staff members participated in violence or abuse at the prison. "The individuals with whom we spoke described nothing less than a culture of torture far too pervasive to be the result of a few 'bad apples,'" the report says. In some cases, members of the investigating team said they witnessed violence firsthand during their inspection visits at the prison. "We also witnessed firsthand abusive and obstructive staff behavior, and saw with our own eyes injuries inflicted by Thomson employees," the report says. In a call with Law360, Kutnik-Baude said prison guards are at fault for both the acts of violence they themselves carried out and for not intervening to prevent violence among inmates. "Under the Constitution and federal law, the guards have a duty to protect people from known threats," she said. "What happened at [the Thomson penitentiary] is that guards were intentionally forcing people into cells together that had antagonisms." For example, she said, a Jewish man was placed in the same cell with two known white supremacists. In other instances, she said, inmates were placed with peers who were known to be mentally ill and threatening, or who were physically or sexually violent. "[The guards] also would tell people that they were expecting them to fight and, if they didn't, that they would be put in four-point restraints or tortured otherwise," Kutnik-Baude said. The report's authors urged the U.S. Department of Justice to open criminal investigations into the abuse allegations at the prison and to abolish the SMU program altogether. "Ending systemic abuses should be a priority," Kevin Metz, a Latham partner who acted as counsel to the investigation, said in a statement. A spokesperson for the Bureau of Prisons told Law360 in an email that the agency took "corrective measures" after it identified "significant concerns with respect to institutional culture and compliance with BOP policies" at the prison. "The BOP remains unwavering in our commitment to swiftly address misconduct and resolve troubling accusations with resolute measures. Allegations of employee misconduct will continue to be met with rigorous investigations and decisive action. A culture not representative of the agency's core values will not be tolerated," the spokesperson, Benjamin O'Cone, said. Located in rural Illinois on the banks of the Mississippi River, the Thompson prison had a capacity of 2,100 beds in 2014 — 1,900 high-security SMU beds and 200 minimum-security beds — according to a report released to Congress. In 2022, the prison housed about 1,200 people on average, according to an audit published last year. According to Kutnik-Baude and congressional reports, the Bureau of Prisons assigns inmates who "present unique security and management concerns" to the special units, usually for up to a year. Conditions in special units are more restrictive than those for general population prisoners. In special units, prisoners are typically placed in pairs inside cells that are roughly the size of a parking spot. These inmates sleep in a bunk bed and share a little toilet and a sink. "Those people are confined in that cell together 23 hours a day," Kutnik-Baude told Law 360 by phone. The report found that some inmates were held in the SMU for nearly four consecutive years. According to BOP directives, prisoners who qualify for SMU confinement are those who took parts in killings, assaults or riots, who possessed drugs, took part in gang activity, or have long histories of disciplinary infractions committed while in prison. One of the elected officials who has shown interest in the Thomson prison, Sen. Dick Durbin of Illinois, a Democrat who chairs the Senate's judiciary committee, called for the abolition of the SMU program in a statement Thursday that mentioned the report by the Washington Lawyers' Committee for Civil Rights & Urban Affairs. Durbin, who has visited the penitentiary and called for a shutdown of its SMU unit in the past, said he plans to question the BOP's director, Colette S. Peters, about the allegations in the report. "Last summer, I was deeply disturbed by reports of abuses at [the Thomson penitentiary]. I called for an investigation, which the Justice Department Inspector General agreed to undertake. The deeply disturbing allegations detailed in today's [news] reports emphasize the need to expedite this investigation and refer any crimes that may have been committed to the Justice Department for prosecution," Durbin said. "Anyone who violated the civil rights of individuals incarcerated at Thomson should be held accountable." BY THE NUMBERS Violence at USP Thomson An investigation of a Special Management Unit inside Thomson U.S. Penitentiary in Illinois included interviews with over 120 inmates and found widespread violence carried out with impunity by both prison guards and prisoners. 241 acts of physical violence by guards at Thomson 178 incidents of guards using restraints as a form of punishment or torture 136 incidents of retaliation by guards 39 people were assaulted by guards while in restraints 41 individuals reported being forced to share a cell with someone who posed a threat 43 people with serious mental illnesses, such as depression and schizophrenia, were held in the SMU in violation of BOP policies 19 incidents of sexual assault by guards 15 individuals attempted suicide, in some cases as many as nine times 13 people held in four-point restraints by guards for 24 to 96 hours straight Three Mohawk tribes are headed toward resolving a land dispute between the state of New York and local municipalities over a late 18th century treaty, ending a decadeslong suit that alleged the state illegally bought 2,000 acres within their defined reservation. Unlike many land claims' settlements, the tribes must also get the approval of the New York Legislature and U.S. Congress before the agreement is finalized because it deals with issues under the Nonintercourse Act and affects the status of lands reserved to the Mohawks through a 1796 treaty. It's not yet known when a full agreement will be in place, but the St. Regis Mohawk Tribe, the Mohawk Council of Akwesasne and the Mohawk Nation Council of Chiefs said in a June 30 report that "there have been two positive developments in achieving a negotiated settlement" and that negotiations would most likely continue through the end of August. U.S. Magistrate Judge Therese Wiley Dancks, in a text-only order on Wednesday, said Mohawk tribes must continue to work together in good faith to finalize the settlement terms and agreements with the state of New York and the counties of St. Lawrence and Franklin. The land suit, filed by the Mohawk Council of Akwesasne, first opened in 1982 and had been paused from 2014 to January 2021, when the stay was lifted after the parties failed to settle. Separate land claims were filed by the tribes in 1989, and the cases were consolidated in 1992. In 1998, the United States intervened as a plaintiff in the case. New York legislators in June approved a bill authorizing Gov. Kathy Hochul to sign an agreement once all parties have given the go-ahead to its final terms. The tribes said that while the bill isn't perfect, it sets the stage to end a 40-year-old dispute. "We have worked very hard on this settlement, and as we have explained to our community members, there are a great many benefits from settling, primarily in increasing our land base." St. Regis Mohawk Tribal Chief Beverly Cook said in a statement at the time of the bill's passage. New York and Franklin County have also reached an agreement on the long-standing issue of payments from the state to the county, according to tribes' report. Under a June 2022 agreement, Franklin County and the towns of Bombay and Fort Covington each received $15 million from New York for the unrestricted use of the reservation land. New York also must pay $2 million annually to be split among the county and the towns for past services rendered. "We anticipate that the memorandum of understanding among the plaintiffs, Franklin County and the state will be revised to reflect the recent understanding between the state and county on the payments issue, and to make other minor changes agreed to by the parties," the tribes said in the report. The tribes are closer to finalizing an internal agreement governing the implementation of the settlement, according to the report, and a separate memorandum of understanding among the tribes, St. Lawrence County and the state are not yet final. In addition, the tribes said they are considering final offers from the state and the New York Power Authority on certain issues but believe they have reached an agreement in principle. "However, not all of the final offers were presented in writing, and so the plaintiffs are now drafting proposed settlement language to embody the agreement in principle, which they anticipate being able to share with the state in the near future," the tribes said. Litigation in the decadeslong case came to a head in March 2022, when a federal district court ruled that New York's purchase of reservation lands in the 1800s violated the Nonintercourse Act. The court found that the state didn't follow six statutes of the act, which regulates commerce within tribal nations and clearly establishes rules for the purchase of tribal property. The federal law specifies that only legislation by Congress can transfer title to a purchaser. New York attempted to purchase approximately 2,000 acres of reservation land in 1824 and 1825 without the presence of a federal commissioner or any subsequent ratified federal act, the tribes alleged. The lands that make up the Hogansburg Triangle, situated at the center of the reservation near the Canadian border, were explicitly reserved for tribal use under the 1796 treaty ratified by Congress. In a March 2021 bid for partial summary judgment, the tribes urged the court to find that the 1796 treaty that established their reservation had been continuously valid since its inception. The tribes cited the 2020 landmark McGirt v. Oklahoma ruling, which reaffirmed tribal sovereignty by saying that the boundaries of the Muscogee (Creek) Nation were never disassembled. "To the extent the defendants contend that the unratified conveyances diminished the reservation, and they might show this through evidence other than congressional action, they are engaged in the very actions that the court in McGirt feared — a state encroaching on tribal rights and nullifying their interests despite Congress' supreme authority over reservation lands," the St. Regis Mohawk Tribe wrote in its filing. Counsel for the tribes and New York could not immediately be reached for comment on Thursday. The tribes are represented by Frank S. Holleman of Sonosky Chambers Sachse Endreson & Perry LLP, Michael L. Roy and Caroline P. Mayhew of Hobbs Straus Dean & Walker, Alexandra Page, Curtis G. Berkey and Jenna Macaulay of Berkey Willliams LLP The United States is represented by James B. Cooney of the U.S. Justice Department's Environmental and Natural Resources Division. New York is represented by its state attorney general's office. The case is Canadian St. Regis et al. v. State of New York et al., case number 5:82-cv-00783, in the U.S. District Court for the Northern District of New York.
A Michigan Court of Appeals panel said a public health law that gave Michigan's health director the authority to close restaurants to control the spread of COVID-19 is unconstitutional, ruling in a split decision that the epidemic-control statute gave state health officials too much power with too few guardrails. The 1978 statute, which gives the public health director power to control gatherings and issue rules to stop the spread of disease in the event of an epidemic, violates the non-delegation doctrine by granting legislative powers to the agency, the majority found. "We find that the power delegated by the legislature to the executive in MCL 333.2253 is extremely broad and is essentially unlimited by restrictive standards," Judge Michael F. Gadola wrote for the majority in an opinion dated Thursday but released Friday. The majority found a catering company and banquet hall, T&V Associates Inc., should have prevailed on its claim that the provision was unconstitutional, reversing a ruling of the Michigan Court of Claims. The catering company said its business was devastated by the restrictions on indoor dining issued by the health department during the pandemic. Those restrictions included, at various times, bans on indoor food service, capacity limits dictating how full restaurants could be and restrictions on how late bars could remain open. In a dissent, Judge Christopher P. Yates lamented that "the COVID-19 wars have raged on" in the courts despite the pandemic itself easing, finding that the issue was moot because the orders the catering company objected to have long since been rescinded. "We judges have the power and, in my view, the duty under the mootness doctrine to dismiss the combatants from the COVID wars and bring down the curtain on this chapter in our history," Judge Yates said. Judges Mark T. Boonstra, Michael F. Gadola and Christopher P. Yates sat on the panel for the Michigan Court of Appeals. T&V Associates Inc. is represented by Albert B. Addis, Paul B. Addis and Justin M. Majewski of Michigan Justice PLLC. Michigan Director of Health and Human Services Elizabeth Hertel is represented by Darrin F. Fowler, Kyla Barranco and Andrea L. Moua of the Michigan Attorney General's Office. The case is T&V Associates Inc. v. Director of Health and Human Services, case number 361727, in the Michigan Court of Appeals. Powell and the other attorneys were among those sanctioned in a blistering order issued by U.S. District Judge Linda V. Parker. The Sixth Circuit on Friday mostly left in place a Michigan federal judge's sanctions against former Trump campaign lawyer Sidney Powell and a handful of other attorneys involved in a lawsuit challenging the 2020 presidential election results, although it found that some claims were reasonable and therefore not sanctionable. The three-judge panel affirmed in part and reversed in part the August 2021 sanctions ruling. Notably, the panel said that a "reasonable pre-filing investigation would have shown counsel that their allegations about [Dominion Voting Systems] were baseless." Thus, those allegations were indeed sanctionable, according to the decision. And their allegations of various lesser violations of Michigan election law were "baseless," the Sixth Circuit said. "The problem with those allegations, simply stated, is that counsel apparently did not read the statute they said was violated," the panel said. At the same time, the Sixth Circuit said the lawyers' complaint did include credible allegations, including that election workers at one voting center "mistreated, intimidated and discriminated against Republican election challengers." "Indeed some three dozen detailed affidavits supported the complaint's allegations to that effect," the panel said. And that intimidation and harassment was potentially criminal, according to the decision. "The district court should not have dismissed these affiants' allegations out of hand," the Sixth Circuit said. Ultimately, the Sixth Circuit said the district court "found the entirety of the plaintiffs' complaint sanctionable." However, "we find only part of the complaint sanctionable, and thus reverse in part and affirm in part." It also slightly trimmed awards to the state of Michigan and city of Detroit, subtracting $8,450 in fees from the city's award and decreasing the state's award from roughly $22,000 to about $19,600. Powell and the other attorneys were among those sanctioned in a blistering order issued by U.S. District Judge Linda V. Parker. According to the judge, Powell and her fellow lawyers attempted to deceive the court through unfounded claims with no supporting evidence, a "historic and profound abuse of judicial process." Judge Parker, who was appointed by former President Barack Obama, ordered the attorneys to take at least six hours of continuing legal education courses on pleading standards and at least six more hours on election law. She also issued a $175,000 monetary penalty and referred her sanctions order to the Michigan Attorney Grievance Commission and other disciplinary authorities for investigations into possible disbarment or suspension. L. Lin Wood, Emily Newman and Stefanie Lynn Junttila then appealed individually, and Gregory Rohl, Brandon Johnson, Howard Kleinhendler, Sidney Powell, Julia Haller and Scott Hagerstrom lodged a joint appeal. In their appeals, the lawyers called the sanctions "career-ending" and argued that Judge Parker had violated their First Amendment rights to petition and discriminated against them based on their and their clients' political viewpoints. On Friday, the Sixth Circuit sided with the lawyers in part but mostly upheld the sanctions. It said that the complaint indeed stated two claims that weren't frivolous, but that it agreed with the district court that all the other claims were sanctionable. In particular, the panel said the lawyers pointed to several unreliable reports from "experts" — and also misrepresented another purported expert report — in claiming that Michigan's election results were statistically anomalous or impossible. At the same time, their reliance on several other experts was not sanctionable, it said. Still, the Sixth Circuit said the district court erred in finding that the attorneys filed their suit for "an improper purpose," in particular asserting that they were trying to use the judicial process to "frame a public narrative." "But another word for 'framing a public narrative' is speech; and Rule 11 cannot proscribe conduct protected by the First Amendment," the panel said. "True, an attorney may not say whatever she likes inside a courtroom. But an attorney's political speech outside a courtroom — including political speech about a lawsuit — is irrelevant to a Rule 11 inquiry about the suit itself." The Sixth Circuit continued, "To the contrary, parties and their attorneys are free to use litigation 'as a vehicle for effective political expression and association.'" Here, speech outside the courtroom is what the district court apparently found objectionable, the panel said. But when it comes down to it, that doesn't show that the lawyers were motivated by improper purposes, according to the decision. The panel also rejected Wood's argument that he didn't know his name was even on the suit, finding that Lin had publicly touted his involvement, including on social media. The lawyers involved in the appeal pursued a slew of unsubstantiated claims in the aftermath of President Joe Biden's defeat of former President Donald Trump in the 2020 election. Ultimately, their efforts in Michigan led the city of Detroit to ask that sanctions be imposed against them. Michigan Gov. Gretchen Whitmer, a Democrat, also filed complaints against Powell and three other attorneys with the Wolverine State's attorney grievance commission, arguing that they should be disbarred. Paul Stablein, an attorney for Wood, told Law360 on Friday that he and his client respect the Sixth Circuit's decision, but "disagree with the court's conclusion that Mr. Wood had anything to do with the drafting or filing of the complaint in Michigan." "The defendants did not present sufficient evidence to conclude that Mr. Wood actually participated in the preparation or investigation of the allegations set forth in the complaint filed shortly after the 2020 election," Stablein said. "Though he may have agreed with the other lawyers' efforts, he did not have any knowledge of the specifics of the complaint and the facts it contained or relied upon." The attorneys, Michigan and Detroit didn't immediately respond to requests for comment late Friday. Junttila couldn't be immediately reached for comment. U.S. Circuit Judges Danny Julian Boggs, Raymond M. Kethledge and Helene White sat on the panel for the Sixth Circuit. The attorneys are represented by Stefanie Lynn Junttila of Federal Criminal Attorneys of Michigan and Howard Kleinhendler, Sidney Powell, Paul J. Stablein and Timothy E. Galligan. Michigan is represented by Heather S. Meingast and Erik A. Grill of the Michigan Attorney General's Office. Detroit is represented by David H. Fink and Nathan J. Fink of Fink Bressack. The case is Timothy King et al. v. Gretchen Whitmer et al., case numbers 21-1785, 21-1786, 21-1787 and 22-1010, in the U.S. Court of Appeals for the Sixth Circuit. The U.S. Supreme Court ruled Friday that Texas and Louisiana lack standing to challenge President Joe Biden's attempt to prioritize national security threats and other targets for immigration arrests and deportations. In an 8-1 ruling, the justices declined to weigh in on whether the U.S. Immigration and Customs Enforcement guidance violated several provisions of the Immigration and Nationality Act, undoing Texas federal Judge Drew Tipton's vacatur of the guidance last June.Justice Brett Kavanaugh's majority opinion rejected the states' argument they had standing based on costs they said they would incur because the Biden administration was not following laws requiring immigration officials to arrest certain noncitizens. "The states cite no precedent, history, or tradition of federal courts entertaining lawsuits of this kind," Justice Kavanaugh wrote. Calling the states' lawsuit "extraordinarily unusual" for asking the judicial branch to order the executive branch to arrest more people, the majority reiterated its longstanding preclusion of entertaining such complaints, saying there is no concrete injury the court can redress. When the executive branch chooses not to arrest or prosecute certain people, it's not infringing on liberty rights that courts generally have the authority to protect, the decision said. Supreme Court precedent has generally held that plaintiffs lack standing when they have not been prosecuted or threatened with prosecution, "and the States have pointed to no case or historical practice holding otherwise," it said. The states' lawsuit also runs up against the executive branch's power to enforce federal laws, Justice Kavanaugh wrote. Accepting their standing argument "would entail expansive judicial direction" over the U.S. Department of Homeland Security's arrest policies, and such policy decisions are better left to Congress, it said. "If the court green-lighted this suit, we could anticipate complaints in future years about alleged executive branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like," the opinion said. "We decline to start the federal judiciary down that uncharted path." Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined the majority opinion. Justice Neil Gorsuch wrote a concurring opinion that was joined by Justices Clarence Thomas and Amy Coney Barrett, and Justice Barrett wrote a separate concurrence joined by Justice Gorsuch. Justice Samuel Alito dissented, saying the majority "brushes aside" major precedent directly controlling the standing question, which he said has allowed standing for traditional injuries that stem from agency decisions not to take enforcement actions. Alito also suggested his colleagues disregarded findings of fact quantifying the costs the states incurred from criminally supervising noncitizens who should have been in DHS custody. The policy, which was issued in February 2021, revamped immigration enforcement guidance to prioritize the removal of individuals considered a threat to border security, national security and public safety. Judge Tipton, however, agreed with Texas and Louisiana that the policy flouted Section 1226(c) and Section 1231(a) of the INA, which state the U.S. attorney general "shall" arrest noncitizens with aggravated felony convictions or final orders of removal. A month later, the Fifth Circuit let the ruling stand. During oral arguments at the high court in November, Solicitor General Elizabeth Prelogar incensed several of the justices with her argument that courts cannot vacate federal agency actions, and have been overreading Section 706 of the Administrative Procedure Act to impose nationwide injunctions blocking federal policy. Justice Roberts called it a "fairly radical" proposition. In his concurrence, Justice Gorsuch addressed the argument, calling it "serious enough to warrant careful consideration." He suggested nationwide injunctions and vacatur — forms of universal relief — put separation of powers at risk. "It exaggerates the role of the judiciary in our constitutional order, allowing individual judges to act more like a legislature by decreeing the rights and duties of people nationwide," he wrote. The policy at issue was the Biden administration's third attempt to identify which noncitizens to prioritize for arrest and deportation, after two previous two schemes were tied up in court. The administration has argued that there are more than 11 million unauthorized immigrants in the U.S. and DHS does not have the resources to remove all of them. Justice Kavanaugh gave a nod to that argument in the majority opinion, saying "that reality is not an anomaly" and has been a constant for 27 years over five administrations that "determined that resource constraints necessitated prioritization in making immigration arrests." The White House, the U.S. Justice Department and Texas did not immediately respond to requests for comment. A spokesperson for Louisiana Attorney General said in a statement to Law360 that the justices "specifically did not endorse" the Biden administration policy, suggesting that "Congress should pass legislation allowing states to hold federal government officials accountable." "The court noted that Congress could not only authorize lawsuits against the executive branch by a specified group of plaintiffs that have suffered harm, but also authorize judicial remedies," the statement said. Homeland Security Secretary Alejandro Mayorkas, meanwhile, welcomed the ruling, saying the agency "looks forward" to reinstating the guidance. "The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress," Mayorkas said. Friday's decision was widely welcomed by immigrant rights advocates. American Immigration Lawyers Association President Farshad Owji said in a statement the decision "sends a clear message." "It was always a bad idea to try and use the courts as a political weapon. Justice wins out today, and this decision means the government will be able to prioritize its limited resources to ensure public safety in a smart and rational manner," Owji said. Kate Melloy Goettel, the American Immigration Council's legal director, said in a statement that "courts should not be in the business of directing law enforcement's decision-making. The decision "should give pause to states contemplating using the courts to drive a political strategy," she said. Law360 is tracking the latest on immigration policies and related developments, including the ICE enforcement guidance. The government is represented by Elizabeth B. Prelogar of the U.S. Department of Justice. Louisiana is represented by Elizabeth B. Murrill and Joseph S. St. John of the Louisiana Department of Justice. Texas is represented by Judd E. Stone, Lanora C. Pettit and Benjamin D. Wilson of the Office of the Texas Attorney General. The case is U.S. et al. v. Texas et al., case number 22-58, in the Supreme Court of the United States. When Kansas lawmakers enacted legislation that made it a crime for out-of-state groups to send mail-in ballot applications to voters, attorneys with Simpson Thacher & Bartlett LLP sprang into action and recently notched a major First Amendment victory in challenging the law.
The firm represented the nonprofit voter engagement groups VoteAmerica and the Voter Participation Center, which are both based outside Kansas, in convincing a federal judge last month to strike down a 2021 law that they said had unconstitutionally barred them from engaging in voter recruitment efforts in the state. Kansas legislators passed the law, known as House Bill 2332, in 2021 over the veto of Democratic Gov. Laura Kelly. The measure was part of a wave of voting restrictions enacted by states across the country in the aftermath of the 2020 presidential election, many of which have gone on to face legal challenges. While almost all of the other suits centered on alleged violations of the Voting Rights Act of 1965, the plaintiffs in the Kansas case went a different way: they invoked the First Amendment, arguing that the law prohibited their political speech, and encroached on interstate commerce in violation of the commerce clause in the U.S. Constitution. The strategy paid off. In early May, a federal judge permanently blocked the enforcement of the provisions in H.B. 2332 that criminalized personalized advance mail-in ballot applications, agreeing that they were "an unconstitutional infringement on [the groups'] First Amendment rights to speech and association" and were "unconstitutionally overbroad." The Kansas officials named as defendants in the suit — Secretary of State Scott Schwab, Attorney General Kris Kobach and Johnson County District Attorney Stephen M. Howe — filed a notice of appeal on June 1, and the case will now go before the Tenth Circuit. When his team of lawyers dove into the case, Jonathan K. Youngwood, the global co-chair of Simpson Thacher's litigation department, said he was fascinated by the legal issues at its core. "It's a case that relates to voting and access to voting, but at its heart it's a First Amendment case," Youngwood told Law360 in a recent interview. "We thought it was important to take on a case like this."Voting by mail was highly popular during the 2020 elections in Kansas, which saw a record turnout of nearly 71%. Because of the challenges and health risks presented by the COVID-19 pandemic, more Kansans used mail ballots to cast their votes than ever before. It's a trend that VoteAmerica and the Voter Participation Center say they would like to see continue, and they've made it their mission to make voting by mail a staple of the post-pandemic era. Seeking an injunction to stop the legislation from going into effect, Youngwood and more than a half dozen Simpson Thacher lawyers invested more than 2,000 pro bono hours on the litigation, partnering with the Campaign Legal Center and lawyers with Latham & Watkins LLP and Dentons. In a complaint filed in June 2021, the attorneys challenged the law on two fronts. First, they zeroed in on what they described as the law's "out-of-state distributor ban," which they alleged was discriminatory against interstate commerce because it explicitly forbade non-Kansas residents to mail advance ballot applications to voters, while allowing state residents to engage in the same conduct. The law set up a civil penalty — $20 for each instance someone mails an advance ballot application — that would have resulted in millions of dollars in fines for VoteAmerica and Voter Participation Center, which send mailers to hundreds of thousands of Kansans during each election cycle, the complaint said. The groups argued that the provision, which directly targeted their operations model, placed "a severe burden" on their rights to free speech and would have a chilling effect in the future. In their second line of attack on H.B. 2332, the organizations argued that a separate provision in the law that prohibited mailing advance mail-in ballot applications that had been pre-completed with a voter's personal information — even where voters had provided that information themselves — undermined their speech and their ability to engage with voters. The state, meanwhile, argued that the personalized application prohibition was necessary to minimize voter confusion, avoid inefficiencies, and reduce potential voter fraud — despite Kansas officials saying publicly that there were no such issues with fraud during the 2020 election. The state also invoked its constitutional authority to regulate elections, saying the law didn't violate the First Amendment. During an evidentiary hearing in September 2021, VoteAmerica Vice President Daniel McCarthy said that the organization, which is incorporated in California and operates remotely, targets voters with traditionally lower turnout rates, who tend to have lower incomes and less access to comprehensive and credible news coverage. "We believe in an expanded electorate where everybody has their right to their vote, and therefore, we have a more representative government," McCarthy said, according to a transcript of the hearing. Voter Participation Center CEO Thomas Keith Lopach testified that his organization aims to boost turnout among people of color, unmarried women and young voters. "We seek to help them engage in democracy," he said.During cross-examination, an attorney for the defendants, Scott R. Schillings of Hinkle Law Firm LLC, asked Lopac about a press release in which the Voter Participation Center called H.B. 2332 "dangerous" because it made it more difficult for people to vote. Schillings noted, however, that Kansans were still able to vote by mail, regardless of the restrictions prescribed by the law. "H.B. 2332 does not interfere with any Kansans' ability to vote by mail, does it?" Shillings asked. "I would disagree," Lopach replied. On the stand for the defense, elections officials for the state of Kansas testified that, during the 2020 election, their offices were overwhelmed by mail-in ballot applications that appeared duplicative. Verifying those applications diverted resources that were to be used to ensure elections ran smoothly, they said. "It's been a stressful scene, and it's been difficult," Andrew Howell, the election commissioner of Shawnee County, Kansas, told the court. Attorneys for the defendants argued that pre-filled mail ballot applications from the Voter Participation Center and VoteAmerica were part of the problem. Two months after that hearing, U.S. District Judge Kathryn H. Vratil ended up siding with the plaintiffs. She issued a preliminary injunction in November 2021 blocking the law from taking effect, while denying the state's motion to toss the suit. "Plaintiffs sufficiently allege that the out-of-state distributor ban is per se illegal," she wrote in the order, saying the nonprofits had shown that they were likely to succeed on the merits. Judge Vratil noted that Kansas' administrative procedures to avoid voter fraud, which had proven successful in the past, undermined the state's rationale for the law. After the ruling, Kansas stopped challenging the plaintiffs' allegations on the out-of-state distributor ban — and, as a result, can no longer seek to defend them on appeal before the Tenth Circuit — but dug its heels in on the personalized mail-in ballot application issue. A lengthy discovery process followed, and a bench trial in the case was expected to start some time in the spring. Acting on summary judgment motions filed in the case, however, Judge Vratil issued a new sweeping order on May 4 that permanently blocked Kansas from moving ahead with the personalized mail-in ballot application ban, saying state officials did not prove that it would achieve its purported goals. She added that the ban infringed on the nonprofits' right to free speech and association. "By proscribing all advance mail ballot application personalization, the personalized application prohibition criminalizes a substantial amount of protected speech and association," the judge wrote in her order. "Facially, the personalized application prohibition is unconstitutionally overbroad." In processing the case, Judge Vratil applied a form of heightened scrutiny to the allegations because, she said, the plaintiffs had successfully established that their First Amendment rights were threatened by the law. Youngwood said his clients' case was strong because it hinged on political speech, an area where American law guarantees significant protections. Plaintiffs in more typical litigation dealing with voting access, such as how long a polling place is open or how many ballot boxes are placed in a certain neighborhood, usually face longer odds, he said. "We think that's part of what makes the case so strong," he said. "It would certainly be our hope that this district court decision will be helpful in fighting off any similar laws that somebody passes." Counsel for the Kansas officials did not return requests for comment. The plaintiffs are represented by Jonathan K. Youngwood, Meredith D. Karp, Bonnie Jarrett, and Nicole A. Palmadesso of Simpson Thacher & Bartlett LLP, Alice Huling, Allison Walter, Aseem Mulji, Danielle M. Lang, Hayden Johnson, and Christopher Lapinig of Campaign Legal Center, and Mark P. Johnson of Dentons. The defendants are represented by Bradley Joseph Schlozman and Scott R. Schillings of Hinkle Law Firm LLC. The case is VoteAmerica v. Schwab et al., case number 2:21-cv-02253, in the U.S. District Court for the District of Kansas. In 1972, a University of Massachusetts Amherst student, Ed Meek, was leaving a college dorm party.[1] As he began his walk home, Amherst police, who had been tipped off about the party, arrested Meek for public intoxication. At the station, the officers discovered a joint in his wallet.
As he recounts in a WBUR essay, Meek and his lawyer persuaded the judge to postpone the trial indefinitely. Little did he know, this would not be the last time he heard about this joint. Nearly 20 years later, he and his wife applied to adopt a baby from Guatemala. However, the Guatemalan government denied their request due to Meek's record of cannabis possession. Although carrying that same amount of cannabis is now legal in Massachusetts, the stain remains on Meek's record. From applying to jobs to volunteering, this charge has and will continue to follow him for the rest of his life. This story is not unique. As both a former public defender and prosecutor, I have seen firsthand how individuals face obstacles to housing, employment and other fundamental opportunities due to nonviolent cannabis law violations. This reality is true for millions of Americans: Studies show that all 50 states have statutes that impose barriers on individuals convicted of crimes, and over 80% of these statutes effectively function as a denial of employment opportunities.[2] A key pathway to address this issue is through expunging low-level cannabis-related convictions. The process of expungement involves petitioning one's local officials, so that individuals can have their record cleared of these convictions. If they are lucky enough to get through, the process can take a lot of time just to have the conviction actually taken off of their record. Previous legislation on cannabis expungement has targeted federal convictions. However, the focus should be on state and local expungements, as state and local law enforcement handle the vast majority of cannabis-related charges. In 2021, state and local law enforcement reported almost 171,000 arrests for marijuana possession, and close to 14,000 arrests for selling marijuana.[3] By contrast, just under 1,000 people were charged with marijuana crimes on the federal level that same year.[4] The problem isn't that states and cities don't want to accelerate expungement programs for cannabis offenses, but rather that their outdated systems can't support these efforts. Some still heavily rely on paper records in local courthouses. In such cases, the process of expungement requires the clerk to manually find the physical record in their filings. In the 21st century, state and local governments should have access to digitized records. This poses the question: What can be done to remedy this issue? That's where the Harnessing Opportunities by Pursuing Expungement Act comes in. In April, I introduced the HOPE Act with Rep. Alexandria Ocasio-Cortez, D-N.Y. This bipartisan legislation would help address these complications by creating a new grant program under the U.S. Department of Justice called the State Expungement Opportunity Grant Program. The grant program provides funding to state and local governments to alleviate the financial and administrative challenges of clearing state convictions related to cannabis. This relief will benefit individuals who are already eligible for expungement under state laws. One of the primary barriers to expungements on the state and local level is the extensive, time-consuming process. While every jurisdiction has different mandates, the applicants are bound to face hurdles. For starters, simply acquiring all the documents needed to file the application is daunting. Not to mention the fact that some jurisdictions need an approval of the expungement from the prosecutor's office before the court can even consider the expungement, tacking on additional time. Once the applicant has obtained all necessary documents, some jurisdictions require them to prepare the legal document, while others require the applicant to serve papers to the district attorney. If and when applicants officially receive the expungement order, which could take months or even years, they may also be required to serve the order to different agencies that have the record of arrest. As we have seen time and time again, technology is the key to efficiency. With this in mind, state and local governments could also use grant funding under the act to provide legal relief on a broader scale, to make cannabis conviction-related expungements automatic, to publicize information about the process of expungement, and more. Funding for technological solutions would address outdated systems, including those that rely on physical records to complete the expungement. Not only do expungements take time, they also aren't cheap. Though fees vary widely across states, they generally cost a few hundred dollars, which may be difficult to afford for people with convictions who are struggling to find work.[5] With a total of $20 million in grants over the course of 10 years, the HOPE Act will help eliminate the financial burdens of the expungement process while also respecting a state's right to choose if they want to provide such relief. Grants will be administered based on the level of need. Whether it be for legal clinics or to automate the process, each jurisdiction can choose what is best suited for their existing laws. In turn, states and localities will be able to effectively and efficiently expunge convictions for cannabis offenses on the state level. Millions of Americans suffer the consequences of cannabis-related arrest records,[6] even though nearly half the U.S. population lives in a state with legal access to cannabis.[7] Both progressive in scope and conservative in approach, the HOPE Act redresses the consequences of outdated policies. From my perspective as a former public defender and prosecutor, this bill is needed to bring justice system policies in line with the realities of cannabis reform. |
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April 2024
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