The United States constitutes less than 5% of the world’s population, yet its prisons house 25% of the worldwide prison population. This phenomenon is due largely to the War on Drugs. First declared in the 1970s, the War on Drugs sought to combat the illegal drug trade in the U.S. through policies intended to discourage distribution and consumption of illegal drugs. However, the War on Drugs and the harsh sentencing policies that followed swelled our prison population and disproportionately targeted communities of color. The number of Americans imprisoned for violating drug laws increased from roughly 41,000 to 453,000 between 1980 to 2017 (The Sentencing Project, Factsheet: Trends in U.S. Corrections).
In recent years, many have begun to recognize that the War on Drugs has failed. States are legalizing the medical and recreational use of marijuana and decriminalizing marijuana and other drugs. Congress passed the Fair Sentencing Act of 2010, which reduced the racially discriminatory crack-to-powder drug quantity ratio from 100:1 to 18:1. The First Step Act in 2018 made the Fair Sentencing Act retroactive, applying the law to 3,000 people who were convicted of crack offenses before the law went into effect in 2010. And recently Members of Congress have introduced legislation to end federal marijuana prohibition.
In November 2000, NACDL passed a Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Calling for an End to the War on Drugs.
Recognizing the impact of the failed War on Drugs, many states have taken action in the legislature and on the ballot to change outdated drug policies. In the November 3rd, 2020 election, drug policy reforms were approved by voters in every state in which they were on the ballot. In Oregon, voters passed measures to decriminalize small amounts of all narcotics and to legalize psilocybin, the main psychoactive component in magic mushrooms, for therapeutic uses. In Washington, D.C., voters passed a referendum urging law enforcement to deprioritize enforcement of laws prohibiting entheogenic plants and fungi, like magic mushrooms. Marijuana legalization measures were approved by voters in Montana, Arizona, New Jersey, and South Dakota, and medical marijuana measures were approved in Mississippi and South Dakota.
As of November 2020, thirty-one states and Washington D.C. have decriminalized simple possession of marijuana. Thirty-six states and Washington, DC have legalized medical marijuana, and fifteen states and Washington, D.C. have legalized recreational marijuana for adults. For more information on existing state laws on marijuana, click here.
Consider joining NACDL’s State Criminal Justice Network (SCJN) to exchange information, share resources, and develop strategies for promoting a justice system that prioritizes health and safety over criminalization.
In 2010, the Fair Sentencing Act cut the 100:1 crack-powder cocaine sentencing disparity to 18:1. In 2018, The First Step Act made it retroactive, allowing more than 3,000 people to receive sentence reductions for crack offenses sentenced under federal mandatory minimums. H.R. 1693/S. 79, the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, would eliminate the crack-powder cocaine sentencing disparity and allow individuals convicted of or sentenced for a federal offense involving cocaine to be re-sentenced under this proposal. In April 2021, NACDL — along with the National District Attorneys Association, Due Process Institute, Americans for Prosperity, Association of Prosecuting Attorneys, and more than 20 other organizations — submitted a letter to the House and Senate Judiciary Committee leadership and Congressional leadership in support of the EQUAL Act. To urge your federal legislators to end the crack-powder cocaine sentencing disparity once and for all, visit NACDL’s Legislative Action Center.
In May 2021, Rep. Jerrold Nadler (D-NY) reintroduced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3617), which would remove cannabis from the Controlled Substance Act and create a process for expungement and resentencing of prior convictions. In addition to de-scheduling marijuana, the MORE Act seeks to address historic and current racial disparities by funding social equity programs for individuals and communities most harmed by the War on Drugs. In 2020, the House of Representatives passed the MORE Act (H.R. 3884/S. 2227), but the legislation failed to advance in the Senate. In 2019, NACDL signed onto a coalition letter in support of the MORE Act.
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A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
To see more pending federal drug law reform bills, visit NACDL's Legislative Action Center and click on 'View key legislation' under the heading 'Find Legislation.'
As opioid-related deaths continue to devastate communities across the country, there is a growing number of law enforcement agencies and prosecutors who are choosing to treat these accidental overdose deaths as homicides. These decisions raise serious policy questions about how resources are utilized, the effectiveness of these practices in curbing opioid related deaths, and how communities view and treat substance use.
Drug Overdose Homicide laws seek to hold drug distributors criminally responsible for overdose deaths. Believed to target major drug traffickers, these laws are actually resulting in friends, family members, romantic partners, and co-users of overdose victims being charged for their death. According to a 2017 report by the Drug Policy Alliance, individuals charged with or prosecuted for drug-induced homicide increased by over 300 percent in six years, from 363 reported prosecutions in 2011 to 1,178 in 2016. According to the Health in Justice Action Lab, by 2019, there were 26 new & expanded laws that recast overdose as homicide, murder, or manslaughter. No systematic empirical evidence exists that these laws reduce the distribution of illegal drugs. Rather, they are likely counterproductive by discouraging people in crisis from calling 9-1-1 for fear of being charged with homicide, thereby increasing the likelihood of overdose deaths.
- "N.J. coalition says Murphy, state should grant clemency for cannabis charges,"
- "Jail Time For An “Imaginary Crime”: It’s Almost Impossible To Overdose Just By Touching Fentanyl, But People Are Being Locked Up For It Anyway,"
- "Fentanyl overdose,"
Drug Law News Releases
News Release ~ 03/19/2018
Nation’s Criminal Defense Bar Blasts Retrograde Trump Rhetoric on Death Penalty –Washington, DC (Mar. 19, 2018) – In New Hampshire this afternoon, the president made clear his view about the importance of harsh penalties, including the death penalty for “big pushers,” as a tool in the fight against public health problem of drug addiction.
News Release ~ 04/11/2014
Nation’s Criminal Defense Bar Welcomes U.S. Sentencing Commission Vote to Reduce Drug Trafficking Sentences -- Washington, DC (April 11, 2014) - Yesterday, the U.S. Sentencing Commission took another step toward making federal drug sentences more reasonable. The agency approved an amendment that would reduce the guidelines level for most drug offenses by two levels, amounting to an 11-month sentence reduction on average. NACDL applauds the Commission’s action and urges Congress not to obstruct this modest, incremental reduction.
News Release ~ 01/27/2014
Unanimous Supreme Court Applies Rule of Lenity; Reverses a 20-Year Mandatory Sentencing Enhancement for Sale of One Gram of Heroin -- Washington, DC (January 27, 2014)—Today, a unanimous U.S. Supreme Court issued an important criminal law ruling in the case of Burrage v. United States by applying the rule of lenity – a rule of statutory construction that resolves ambiguities in the language of a law in favor of the defendant.
Drug Law Media Items
The Fight for Equitable Cannabis Reform
Since the onset of the war on drugs, cannabis prohibition has carried devastating consequences for communities of color. In the past decade alone, despite similar usage rates, Black Americans across the country have been 3.6 times more likely to be arrested for cannabis possession than white Americans. Cannabis criminalization has also been used to justify an increase in police surveillance, expanding the overall scope of policing and diverting scarce resources away from education and valuable social services. Today, lawmakers are beginning to rethink these practices, instead introducing new policies advancing legalization, decriminalization, retroactive expungement and resentencing, and community reinvestment.
- Sarah Gersten, Executive Director, Last Prisoner Project
- Chelsea Higgs Wise, Executive Director, Marijuana Justice Virginia
- Ean Seeb, Special Advisor on Cannabis, State of Colorado
- Moderated by: Maritza Perez, Director of the Office of National Affairs, Drug Policy Alliance
Understanding and Challenging Cause of Death: Forensic Pathology and Coroners Systems - Sample Cross
- Douglas Coffey, Assistant Public Defender, Forensics Division, Maryland Office of the Public Defender
- Dr. Amy Hawes, Hawes Forensic Consulting, Knox County Medical Examiner
Defending Drug Overdose Homicides in Pennsylvania
November 6, 2019 | Harrisburg, PA
Understanding and Challenging Cause of Death: Forensic Pathology and Coroners Systems
Presented by Dr. Amy Hawes, Hawes Forensic Consulting, Knox County Medical Examiner.
Defending Drug Overdose Homicides in Pennsylvania
November 6, 2019 | Harrisburg, PA
Drug Law Champion Articles
- Book Review: Helena Star by Stewart Riley
A Dose of Reality: Drug Death Investigations and the Criminal Justice System
Due to the increased push for prosecutions in drug-related deaths, it is more important than ever for criminal justice system stakeholders to have access to accurate, standardized, and professional death investigation and death certification. Amy Hawes and Denise Martin share some of the common pitfalls in drug death investigations, discuss national recommendations for coroner and medical examiner investigations, and set forth the qualifications death investigation experts should possess.
The Basic Steps a Criminal Defender Must Take to Understand the Adverse Immigration Consequences
of Drug Offenses
When a criminal defense attorney sees a drug or drug-related charge alleged against a noncitizen client, the attorney should immediately think of immigration consequences. The main defense strategies for drug cases are as follows, in order of preference: (1) avoiding a drug conviction entirely through dismissal or negotiation; (2) if a drug conviction is unavoidable, avoid an aggravated felony; (3) plead to a substance that is not federally controlled; or (4) create a vague record of conviction as to the substance if the state law is overbroad.