The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction

63 Pages Posted: 29 May 2020 Last revised: 27 Oct 2020

See all articles by Erica Zunkel

Erica Zunkel

University of Chicago Law School

Alison Siegler

University of Chicago Law School

Date Written: April 3, 2020

Abstract

While state drug law reform is moving apace, federal drug law reform has moved much more slowly. Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years. But Congress has not acted. As a result, the federal system continues to single out drug offenses for harsh treatment at the bail stage and the sentencing stage—the front end and back end of the federal mass incarceration crisis.

In this paper, we argue that federal judges have a critical role to play in future federal drug law reform in light of Congress’ long-standing failures to meaningfully change the laws. At the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention and giving little weight to the Bail Reform Act’s presumption of detention. Data shows that the statutory drug presumption is overbroad and does a poor job of determining who is a risk of flight or a danger to the community. At the back end, judges should issue categorical policy disagreements with the drug sentencing guidelines and the career offender sentencing guideline using the Supreme Court’s blueprint in Kimbrough v. United States. Judges should issue sentences below these guidelines because they are not based on empirical evidence, over-punish drug offenses, and result in racial disparities. At both ends, judges should rest their decisions on the evidence that the drug presumption, the drug sentencing guidelines, and the career offender sentencing guideline are flawed. While judicial action is not a cure for Congressional inaction, it would send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.

Keywords: Drug Law, War on Drugs, Bail, Bail Reform, Sentencing, Sentencing Guidelines

Suggested Citation

Zunkel, Erica and Siegler, Alison, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction (April 3, 2020). Ohio State Journal of Criminal Law, Vol. 18, No. 1, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3589862 or http://dx.doi.org/10.2139/ssrn.3589862

Erica Zunkel (Contact Author)

University of Chicago Law School ( email )

6020 S. University Avenue
Chicago, IL 60637
United States

HOME PAGE: http://https://www.law.uchicago.edu/faculty/zunkel

Alison Siegler

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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