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18 Ohio St. J. Crim. L. 283 (2020-2021)
The Federal Judiciary's Role in Drug Law Reform in an Era of Congressional Dysfunction

handle is hein.journals/osjcl18 and id is 291 raw text is: The Federal Judiciary's Role in Drug Law Reform in an Era of Congressional Dysfunction Erica Zunkel & Alison Siegler* 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-standingfailures 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 offlight 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. * Erica Zunkel is an Associate Clinical Professor of Law and Associate Director of the Federal Criminal Justice Clinic at the University of Chicago Law School. Alison Siegler is a Clinical Professor of Law and the Founder and Director of the Federal Criminal Justice Clinic at the University of Chicago Law School. Thank you to George Colligan, Stephanie Didwania, Jelani Jefferson Exum, Amy Kimpel, Adam Simon, and Jonathan Wroblewski for thoughtful comments and Carly Gibbons for helpful research assistance. 283

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