Read our full comment with citations here. United States Sentencing Commission One Columbus Circle, N.E., Suite 2-500 Washington, D.C. 20002 Attn: Public Affairs – Priorities Comment Dear United States Sentencing Commissioners, The Last Prisoner Project (“LPP”) submits the following comments to the United States Sentencing Commission (“the Commission” or “USSC) in response to the Commission’s request for comment on possible policy priorities for the 2024-2025 amendment cycle. LPP commends the Commission for taking steps to better reflect the current legal and policy landscape surrounding cannabis activity in the United States, and specifically the recent amendment #821 C, which allows for a downward departure to a criminal history score for a prior cannabis possession conviction. We would like to take this opportunity to urge the Commission to further amend the sentencing guidelines to exclude prior cannabis possession offenses from criminal history scores entirely, so that they are not used to increase criminal sentences for subsequent offenses. We also want to thank the Commission for clarifying via Amendment #814 that retroactive changes to law can be considered as extraordinary and compelling factors for a sentence reduction motion under section 3582(c)(1)(A) in the case of an “unusually long sentence”. Given the widespread and significant changes to the legality and public perception of cannabis, we would, however, ask that the Commission not limit the use of a retroactive change in law to individuals serving at least ten years of imprisonment. We also would like to address the Commission’s oversight of drug sentencing and the Drug Quantity and Drug Conversion Tables (hereinafter, the Tables). Specifically, we urge the Commission to conduct a complete review and revision of the Tables. Sentencing Guidelines Should Reflect Current Notions of Criminality In your 2023 publication “Weighing the Impact of Simple Possession of Marijuana” the Commission noted the shifting sentiment towards cannabis at both the state and federal level and the Commission again noted these changes in law when promulgating amendment #821 Part C. Today, 24 states and the District of Columbia have fully legalized cannabis for adult-use while only three states have no public cannabis access program.1 These state-legal marketplaces generate billions of dollars not just in sales, but also in tax revenue for these jurisdictions, all while cannabis remains federally illegal and the criminal status of cannabis continues to lead to hundreds of thousands of arrests each year. Now, the federal government is poised to reclassify cannabis–following the Health and HumanServices Department’s recommendation in late 2023, the Drug Enforcement Administration (DEA) recently announced its decision to reschedule cannabis to Schedule III. This move demonstrates the federal government’s shifting policy approach to cannabis as a less harmful substance with medicinal benefits. In conjunction with prospective changes to cannabis laws, local, state and federal political leaders are increasingly taking concrete action to mitigate the past harms caused by decades of cannabis prohibition. In October of 2022, President Biden pardoned all federal simple marijuana possession offenses and formally encouraged state governors to do the same, an action he expanded upon in late 2023.5 Officials have followed suit, as evidenced by former Oregon Governor Kate Brown pardoning over 45,000 individuals with marijuana convictions and Connecticut Governor Ned Lamont announcing the automatic clearing of over 44,000 cannabis records. City officials in places like New Orleans and Birmingham have also taken steps to pardon municipal marijuana possession offenses.8 These actions signify that, beyond the shifting legal landscape for cannabis use, public perception of cannabis has also changed. The vast majority of Americans, including the sitting President, no longer feel that cannabis use is something that should be criminalized. We have changed our approach to criminalizing cannabis, and thus, the US Sentencing Guidelines must be adjusted to reflect this current climate. Continuing to punish individuals for an activity that is legal for a majority of Americans does not comport with our country’s shared values of justice and fairness. It is only fitting that any marijuana offense, including but not limited to simple possession, should be eliminated from consideration as a factor in calculating an individual’s criminal history score for sentencing purposes. Removing Marijuana Offenses from Criminal History Scores will Result in More Equitable Sentencing When one considers the well-documented racial disparities found in the enforcement of cannabis laws, it is clear that excluding marijuana offenses from criminal history scores will also result in a more equitable approach to sentencing. In 2013, a report from the American Civil Liberties Union found that, despite virtually indistinguishable rates of cannabis consumption amongst racial groups, Black residents of the United States were 3.73 times as likely to be arrested for marijuana possession than their white counterparts. A 2020 follow-up to the ACLU report found that, despite several states legalizing or decriminalizing cannabis, these racial disparities remained essentially unchanged. Data indicates that these racial disparities appear to persist in conviction rates and sentencing. As sentencing guidelines are meant to be considered objectively and reflect an accurate prediction of an individual's criminality, removing marijuana convictions from individuals’ criminal history scores would be a step toward creating a more equitable sentencing process. In addition, excluding marijuana convictions from consideration altogether is also in line with the current administration’s position on the criminality of cannabis use. As President Biden stated, “sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit.”13 If permanently enacted, this proposed amendment would help alleviate, or at the very least not further exacerbate, the racial disparities in our criminal legal system. It’s also worth noting that the availability of avenues through which individuals can clear marijuana possession offenses from their records is highly dependent on the jurisdiction in which the offense took place. As noted above, many executive offices (whether it be the president, state governors, or mayors) have pardoned all simple marijuana possession offenses. In some jurisdictions, like Oregon, that pardon results in automatic record clearance. However, in most jurisdictions, pardoned offenses still appear on an individual’s criminal record, perpetuating barriers to employment, housing, and educational opportunities (to name just a few of the collateral consequences accompanying even a low-level marijuana conviction). Although several states have established methods for individuals to expunge or remove previous marijuana-related convictions, disparities still exist among those who can access this relief successfully. Clearing one's record can be overwhelming, especially for individuals lacking a legal background, technical knowledge, or easy access to criminal records and court filings. Eligible individuals with language barriers or illiteracy also struggle to clear their records. Consequently, race and socioeconomic status often determine who can overcome these difficulties and access record clearing and expungement. Unfortunately, most eligible individuals do not complete these record-clearing processes. This disparity in accessing record-clearing mechanisms for marijuana offenses is yet another inequality present in the Commission’s current guidelines, which include marijuana possession offenses in criminal history scores. It’s unfair that those who, for the reasons named above, could not clear their records successfully are subject to harsher sentencing ranges. A Marijuana Conviction is Not a Valid Predictor of Future Criminality The US Sentencing Guidelines Manual states that a “defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” The manual goes on to note that because “[r]epeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation,” an individual’s criminal history must be considered during the sentencing phase “[t]o protect the public from further crimes of the…defendant.” In the case of a simple marijuana possession offense, however, there is little correlation between cannabis use and criminality. According to a national study of recidivism, individuals convicted of drug offenses have significantly lower recidivism rates than those convicted of violent or property-related crimes. Additionally, a 2020 report authored by the Commission found that individuals convicted of marijuana-related offenses have one of the lowest rates of recidivism when compared to other drug offenses. In one of the few available studies on recidivism rates for individuals where drug possession (as opposed to trafficking) was their primary offense, the rate of recidivism was incredibly low as compared to national averages. In short, as there is no evidence that marijuana possession convictions are valid predictors of future criminal behavior (and thus do not endanger public safety), they should be excluded from individuals’ criminal history score calculations. Changes to Laws and Attitudes Surrounding Cannabis Also Warrant an Amendment to the Commission’s Compassionate Release Policy Statement In promulgating Amendment #814 the Commission described the circumstances in which an intervening change in the law can qualify as an extraordinary and compelling factor warranting compassionate release. The Commission clarified that such changes to the law may be considered if an applicant otherwise meets the factors warranting a sentence reduction or that such a change on its own could constitute an extraordinary and compelling factor if the case involves an “unusually long sentence” and the applicant has served at least ten years of a term of imprisonment. As the Commission noted in its Amendment: “One of the expressed purposes of section 3582(c)(1)(A) when it was enacted in 1984 was to provide a narrow avenue for judicial relief from unusually long sentences. Having abolished parole in the interest of certainty in sentencing, Congress recognized the need for such judicial authority.” Thus, compassionate release serves a critical function in providing relief where it is clear that the length of a term of imprisonment does not comport with modern laws and attitudes surrounding the criminal activity at hand. As described above, we now face a situation where thousands of federal prisoners remainincarcerated for activity that has been broadly legalized at the state level and that many are now profiting from. Our federal government has now also changed its stance on the dangerousness of cannabis and has acknowledged that cannabis has medicinal benefits. Given these circumstances, an individual serving a nine-year sentence for a controlling cannabis offense can credibly argue that their sentence is “unusually long” for the offense they are sentenced under. While cannabis may represent the offense that has seen the most pronounced change to its legal status in recent history, it is an all too common occurrence in American history that our beliefs, sentiments, and even scientific consensus evolve faster than our laws and their associated criminal penalties. As the remaining mechanism for relief for federal prisoners incarcerated under unjust laws, the compassionate release factors should be applied broadly enough not to exclude individuals whose sentences are unjust and excessive, but may not meet the ten year requirement, even if no other compassionate release factors apply. Changes to Drug Laws More Broadly Warrant a Reevaluation of the Drug Quantity and Drug Conversion Tables While over fifty years of ongoing political and educational messaging demonizing drug use and stigmatizing drug users has failed to realize a drug-free world, the underlying racial and social motivations have succeeded. Since its inception, the drug war has been overwhelmingly enforced in BIPOC communities, especially low-income ones, causing the country’s inflated prison population to be disproportionately comprised of Black, Latino, and Indigenous people. It has led to lengthy terms of imprisonment for relatively low-level offenses and for those with little to no criminal history, which perpetuates cycles of trauma and violence. The same conditions have fueled and perpetuated violence internationally and in inner-city neighborhoods nationwide, and have led to increases in concentration, adulteration, and toxicity of the substances themselves. An increasingly multi-partisan coalition is calling for change. In 2017, the USSC published a report describing, in part, how drug-related mandatory minimum penalties have been "applied more broadly than Congress may have anticipated.” Such non-discretionary sentencing fails to promote public health. Instead, it has the effect of incarcerating people for longer amounts of time than the evidence shows deters further criminal activity. While reversing and mending the harms of the war on drugs will take effort from people across the government and political spectrum, one way to shift policy in a more humane direction–and in alignment with contemporary evidence–is to go to one of the current roots of the problem: drug sentencing. The Drug Quantity and Drug Conversion Tables, set by the USSC, are used as a benchmark for federal drug sentencing and are often referenced or relied on in state sentencing decisions. Bringing these Tables into alignment with modern research about drug risks and harms would lead to more accuracy in sentencing decisions, which would both alleviate some of the socioeconomic harms of the drug war and save public funds, without risking public safety. Given that the Tables presently translate quantities of various illegal drugs into their marijuana-equivalent quantities for the purpose of determining relative harm, it would be appropriate to utilize the multi-agency review already happening with cannabis to review and update the tables. Additional research about other historically stigmatized substances should also inform this review. The Food and Drug Administration (FDA) granted a breakthrough therapy designation to MDMA-assisted therapy in 2017, and again granted two breakthrough therapy designations for psilocybin in treatment-resistant depression in 2018 and major depressive disorder in 2019. In 2024, the FDA extended the same status to an LSD formula for the treatment of generalized anxiety disorder. The FDA is also reviewing a new drug application for MDMA-assisted therapy, for which they will likely have a decision by August 2024. Meanwhile, there has been growing bipartisan support to fund clinical trials exploring the use of psychedelics to treat traumatic brain injuries, depression, military sexual trauma, and post-traumatic stress disorder in veterans. For instance, in the 2024 National Defense Authorization Act, the Department of Defense authorized funding a study on psychedelics for the treatment of PTSD in military members. In March 2024, the Department of Veterans Affairs passed a budget allocating $20 million for clinical trials for MDMA and psilocybin. The National Institutes of Health has also opened funding opportunities for studying psychedelic-assisted therapy for chronic pain in older adults. This shift in the evidence base, and concurrent changes in federal policy, reflects an increasing willingness and mandate to reevaluate long-held assumptions about controlled substances, paving the way for more drug policies driven by data rather than dogma. Alongside the evidence and government agencies, recent polls have found an overwhelming majority of American voters are also eager for a new approach to drug laws and responses to drug-related offenses. Over 60% support ending the War on Drugs; “eliminating criminal penalties for drug possession and reinvesting drug enforcement resources into treatment and addiction services”; repealing mandatory minimum sentences for drug crimes; and commuting, or reducing, the sentences of people incarcerated for drugs. Representing one of “the few truly bipartisan issues in American politics,” the “breadth and depth of support for change suggests that there are few issues for which the nation’s laws so misrepresent the preferences of the American people as for drugs.” Despite these widespread calls for evidence-based policies and new approaches for regulating controlled substances, the Tables remain based on outdated medical, scientific, and sociological information. Not only do they recommend disproportionately severe penalties, they have no basis in the actual risks posed by each substance, the realities of the illicit drug market, criminal culpability, or other public safety factors. Congress and this Commission have already acknowledged that the Tables have resulted in outrageous sentencing disparities for otherwise similar behaviors, at least in the context of crack versus powder cocaine. For the Tables to be more in line with the Controlled Substances Act’s stated process for regulation, there is a serious need for the USSC to re-evaluate sentences based on “current scientific knowledge regarding the drug or other substance,” potentially positive “pharmacological effect[s],”42 and likelihood of misuse and dependence. Any inquiry should take into account ways harm reduction approaches, public education, and proven methods of avoiding harm and use among minors can reduce the likelihood of misuses and dependence. Revising the Tables would likely lead to a reduction in resources spent on enforcement, prosecution, and punishment. Those resources could then be reinvested to bolster effective harm reduction and public education efforts. Last Prisoner Project and countless other organizations across the political spectrum and around the country are coming together to organize and inform the USSC and the general public about the importance of this issue. The United States is long overdue for sentencing reform, and the urgency lies especially with drug-related offenses. As a complete review and revision of the Tables will likely require the USSC to conduct a multi-year study, the Commission must take an important first step to initiate such an inquiry now. Conclusion Like all components of criminal sentencing, criminal history score calculations should be proportionate to the offense and no greater than necessary to further the goal of public safety. Additionally, sentencing guidelines should be equitable and structured in a way that works to reduce racial disparities. By removing prior cannabis offenses from criminal history scores and allowing for changes to cannabis laws to be used as the sole basis for an extraordinary and compelling justification for release under 3582(c)(1)(A) the Commission can better achieve its goals of sentencing policies that align with fairness and justice. In addition, we encourage the Commission to commit to conducting a reevaluation of the drug quantity and drug conversion tables more broadly given the available scientific and medical data. We appreciate the opportunity to comment on this request and thank the Commission for its time and consideration.

You can find LPP's full submitted comment on regulations.gov or see the document here . Last Prisoner Project 1312 17th St SUITE 640 DENVER, CO 80202 July 19, 2024 Drug Enforcement Agency Attn: Liaison and Policy Section 8701 Morrissette Drive Springfield, VA 22152 Dear United States Drug Enforcement Agency, The Last Prisoner Project (“LPP”), a national nonprofit that works at the intersection of cannabis and criminal justice, submits the following comment concerning the Drug Enforcement Agency’s (“DEA”) oversight of cannabis scheduling (Document ID DEA-2024-0059-0001). Specifically, we urge the DEA to decontrol cannabis due to the grave public health consequences of cannabis-related incarceration. At the Last Prisoner Project, we recognize the DEA’s decision to approve the Department of Health and Human Services recommendation to reschedule cannabis to Schedule III is historic. This announcement is the culmination of years of advocacy by groups like ourselves to push the federal government to better reflect the public’s view on cannabis. With this said, while the move is undoubtedly a step forward, it does not fulfill LPP’s goal to fully remove cannabis from the Controlled Substances Act, and we believe the failure to do so propagates significant risks to public health given the nature of cannabis-related incarceration. Rescheduling is a peripheral change that signals the reevaluation of cannabis, but not the release of cannabis prisoners or relief for those who continue to be burdened by the lasting consequences of the carceral system, particularly as it relates to public health. Completely eliminating criminal penalties for cannabis and ending lengthy sentencing practices for cannabis-related offenses also enables scarce public health and safety resources to be focused where they are most needed. Removing cannabis from the CSA entirely not only comports with legalization trends in the vast majority of states, but also with the sentiment of a vast majority of Americans that believe cannabis should be legalized. This shift demonstrates the shift in American sentiment given the growing body of research and evidence as to the dangerousness of cannabis and its potential medical benefits, as has been indicated by numerous other commenters. For decades, cannabis-related criminalization and incarceration have posed significant long-term health risks, particularly in communities of color. In 2013, a report from the American Civil Liberties Union found that, despite virtually indistinguishable rates of cannabis consumption amongst racial groups, Black residents of the United States were 3.73 times as likely to be arrested for marijuana possession than their white counterparts. A 2020 follow-up to the ACLU report found that, despite several states legalizing or decriminalizing cannabis, these racial disparities remained essentially unchanged. Data indicates that these racial disparities appear to persist in conviction rates and sentencing. These health implications are most evident when investigating discrepancies in life expectancy, rates of illness and hospitalizations, and mental health disturbances. The research surrounding the relationship between incarceration and diminished life expectancies is unequivocal. Studies have shown that “each year in prison takes 2 years off an individual’s life expectancy.” And more broadly, “mass incarceration has shortened the overall US life expectancy by 5 years.” Even upon release, these impacts continue, given that mortality rates for individuals under any form of community supervision are two to three times higher than the general population. It is also worth noting that many incarcerated individuals already face increased health risks due to the disproportionate methods of policing. Cannabis is overcriminalized amongst communities of color, who already face diminished life expectancies. Furthermore, data shows that “people aged 55 years and older are among the fastest growing segments of the incarcerated population. Older adults have higher rates of chronic conditions and mental and physical disabilities.” While incarcerated, individuals are often subject to unsanitary conditions, environmental hazards, physically uninhabitable living quarters, and lack basic medical access, nutritional sustenance, and mental health resources. The impacts of these factors are clear in the relationship between incarceration and rates of illnesses and hospitalizations. Research shows that individuals who are incarcerated are more likely “to have high blood pressure, asthma, cancer, arthritis, and infectious diseases, such as tuberculosis, hepatitis C,.” HIV/AIDS is two to seven times more prevalent amongst incarcerated populations, and an estimated 17% “of all people with HIV living in the U.S. pass through a correctional facility each year.” Similarly, “hepatitis C occurs at rates 8 to 21 times higher among incarcerated people.” Overall, rates of hospitalization are significantly higher in individuals who have been incarcerated than they are in the general population. Additionally, due to the lingering collateral consequences attached to a criminal conviction, individuals are at a much higher risk of entering states of risk and poverty upon release, leaving many of these health concerns to exacerbate. Individuals who are incarcerated or under community supervision are significantly more likely to experience mental health and substance abuse problems throughout their lifetime. Research shows that the prevalence of serious mental illness is two to four times higher in jails and prisons. The deleterious effect of incarceration can significantly alter an individual’s well-being, health, and mortality. By some estimates, incarceration can trim between four and five years of life expectancy if someone is incarcerated at age 40. Given the US's disproportionate incarceration rate when compared to global peers, there is research that suggests the relationship between incarceration and life expectancy may actually serve to depress national statistics on mortality rates among young adult males and females (20-44 years old) and older adults (45-69), as the US ranks close to the bottom in all of these categories. Factoring in that that an incarcerated individual is more than three times as likely to die from suicide compared to someone in the general American population also contributes to the the US’s grim global ranking. The consequences of these health risks ripple beyond prison doors. Not only do individuals continue to face significant health risks upon release due to their long-term nature, but also, the risks permeate throughout entire communities. A recent study demonstrated that children who have had a family member incarcerated experience poorer health outcomes later in life. So much so that individuals who have a family member who is currently or formerly incarcerated have a shorter life expectancy by 2.6 years. This is because the brutality of incarceration is felt by entire communities due to the emotional trauma of family and community separation as well as the financial burdens imposed by incarceration. With these health crises in mind, LPP believes that the mere rescheduling of cannabis - which allows the continued criminalization of cannabis use and imprisonment for cannabis offenses - perpetuates the public health risks associated with incarceration. Therefore, we urge the DEA to go further, and to decontrol cannabis, thus reducing criminal penalties and creating avenues for individuals currently serving time for cannabis offenses to seek relief. We believe that this would significantly improve the nation's public health in numerous ways. Not only would it improve the health crisis within prisons by mitigating overcrowding, but it would also improve the health outcomes of individuals incarcerated for cannabis offenses by shielding them from the fatal conditions of prisons, ultimately uplifting surrounding communities as well. We appreciate the opportunity to comment on this request and thank the DEA for its time and consideration.

We are happy to share that Robert “Bobby” Capelli Jr. has been reunited with his family and was released to a residential reentry management facility after serving over four and a half years of his almost 8-year sentence for a victimless cannabis offense. In 2019, Bobby was sentenced to 95 months in prison. Just two years later, the state of Connecticut legalized adult-use marijuana, highlighting the stark contrast between past penalties and present laws. While Connecticut may have moved on, we at the Last Prisoner Project did not forget about Robert or all those in the state still incarcerated and advocated for their release. Robert Capelli Jr. is currently 36 years old. Unfortunately, Robert’s legal troubles began in 2017 when he was indicted and later convicted by a jury on July 25, 2019. The charges stemmed from his involvement in a large-scale marijuana distribution operation that lasted from 2015 to 2017. Despite these hardships, Robert’s adult life prior to his conviction was free of any criminal history​​. Yet he was sentenced on December 3, 2019, in the District of Connecticut for conspiracy to distribute and possession with intent to distribute 1000 kg or more of marijuana. His case resulted in a 95-month prison sentence and an additional four years of supervised release​​​​. The judge acknowledged the complexity of Robert’s background during sentencing, but despite these acknowledgments, the sentence imposed was significantly influenced by the guidelines and the nature of the offenses​​. However, the victimless nature of his offenses should not have resulted in such a severe sentence, which many believe to be excessively harsh. ​​ Even the judge herself noted, “although both sides agree that the advisory sentencing guidelines provide for sentencing range in excess of what is necessary to satisfy the goals of sentencing, nonetheless the Court must calculate the applicable guidelines.” This recognition highlights the tension between legal guidelines and the pursuit of justice and proportionality in sentencing​​. “The words I write can’t describe the feelings and hopelessness as you hold your crying wife in your arms and tell her that you have to leave her for nearly 8 years,” Robert lamented in a letter he wrote to Last Prisoner Project while imprisoned. “People like me are being locked away for years upon years caused by cannabis prohibition. A plant medicine that helps millions of people across the country, has zero fatalities, and is being legalized state by state across the country,” he continued in his letter. “I still believe I can beat the odds, be a better person and come out on the other side of this.” But now, Robert was released to a reentry facility earlier this July and had this to say to LPP supporters, “Losing years of my life in prison for a cannabis conviction was cruel, unjust and unbearable. The pain of subjecting my life in a cage for years on end seemed like an impossible task but the Last Prisoner Project picked me up when I was down. Between Mary Bailey, Goodwin Procter, Liz Budnitz, the commissary assistance and all the letters of support from the LPP subscribers I was able to make it back home to my beautiful wife Bianca. Thank you for everything LPP!!!” LPP’s advocacy for Robert Capelli Jr. included letters of support, commissary funding, and a reentry grant. Furthermore, we will continue to support Bobby until he is fully free. We thank our Cannabis Justice Initiative partners at NACDL for their work on this case.