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October 2004
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Supreme Court Season is Coming!

The ACLU has a guide to this year’s Supreme Court term. Here’s their description of a few cases related to drug policy.

The issue in United States v. Booker (04-104) and United States v. Fanfan (04-105), is whether the federal sentencing guidelines are similarly [as in Blakely v. Washington] invalid because the guideline score that is used to determine a defendant’s sentence often rests on facts that are never presented to the jury — such as the actual quantity of drugs involved in a particular transaction. Instead, those critical findings are made by a judge based on a preponderance of the evidence at a post-conviction hearing where reasonable doubt is no longer the standard.

Thousands of federal sentences could be affected by the Supreme Court’s decisions in Booker and Fanfan. …

Too often, as we know, the consequences of incarceration do not end with incarceration. Many states disenfranchise former felons. This issue achieved national prominence when approximately 600,000 people were prevented from voting in Florida in the 2000 election because of felony convictions. Felon disenfranchisement laws, however, exist throughout the country. According to a recent study, one out of four black men in Providence, Rhode Island will be barred from voting in this year’s election. Two cases now pending before the Court on petitions for certiorari — one from the Second Circuit (Muntaqim v. Coombe, 04-175), and one from the Ninth Circuit (Locke v. Farrakhan, 03-1597) — ask the Court to decide whether the racially disproportionate impact of felon disenfranchisement violates Section 2 of the Voting Rights Act.

Race is not an explicit issue in Illinois v. Caballes (03-923), but it is an issue nonetheless. The formal question presented is whether the Fourth Amendment requires individualized suspicion before the police employ a canine unit to sniff for drugs during a routine traffic stop. While most people feel anxious during any police encounter, the presence of a police dog fundamentally changes the nature of the seizure, as the ACLU points out in its amicus brief, making it both more intimidating and a more serious intrusion on privacy. Even beyond those generalized concerns, there is good reason to fear that minority drivers will more often be subject to this invasive practice in the absence of individualized suspicion given everything we have learned in recent years about the prevalence of racial profiling by law enforcement.

Another aspect of the misguided “war on drugs” will be before the Court in Ashcroft v. Raich (03-1454), where the federal government is defending its right to prosecute two critically ill patients in California who cultivated marijuana for their own personal use after it was recommended by their doctors in accordance with California law. The Ninth Circuit held that this exercise of federal power violates the Commerce Clause, and this case undoubtedly raises important questions of Commerce Clause jurisprudence. There is, nonetheless, something profoundly disturbing about the government’s effort to treat the case as merely about commerce, thereby obscuring the important liberty interest involved when patients who often have no other option seek to use marijuana to obtain relief from unbearable pain.

I’m going to be following all of these with great interest, but especially Ashcroft v. Raich, which will be argued November 29, 2004 at 10:00 am.

[Thanks to TalkLeft]

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