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. 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.

Last Prisoner Project (LPP) is honored to be named a member of the expungement task force to ensure all Hawaiians have an opportunity to finally move on with their lives and shed the scarlet letter a criminal conviction imposes. LPP’s appointment to the Clean Slate task force comes on the heels of Governor Green signing HB 1595, a bill that will build out the first-ever state-initiated record clearance program in Hawai’i history. In 2019, Hawai‘i decided no one should be arrested for simple possession of cannabis. Before this change in law, even a small amount of cannabis could have landed someone in jail. For those lucky enough to avoid jail time, their arrest still generated a criminal record along with numerous collateral consequences. Thousands of Hawai’i residents carry a criminal record for cannabis possession even though they are eligible to have it expunged. Hawaii’s expungement process is petition-based, which is against best practice. Research shows that less than 6.5% of people who are already eligible for an expungement ever have their records expunged because of the cumbersome nature of a petition-based record clearance process. Since 2022, LPP has taken an all of the above approach to help design, write, and now implement retroactive relief for past non-violent cannabis convictions. In 2022 we presented to the Dual Use of Cannabis Task Force on best practices and procedures for state-initiated record clearance and sentence modification. In 2023 our recommendations helped shape several legislative efforts to provide retroactive relief for non-violent cannabis convictions, including several adult-use legalization efforts that were unable to become law. LPP was also named in HCR 51, sponsored by Rep Kapela (D), a resolution urging Governor Green to provide retroactive relief for non-violent cannabis convictions. This year’s legalization push began with a redline drawn by the Hawai’i Attorneys General Office that the Department would actively oppose any attempt to streamline record clearance. Through persistence, diligence, and coordination among key stakeholders, LPP was able to pull together opposing parties to get HB 1595 passed even though legalization did not.” LPP’s appointment to the expungement task force will help ensure the state-initiated cannabis expungement bill signed by Governor Green is implemented with fidelity and can serve as the foundation for broader record relief moving forward. We would like to thank Representatives Tarnas, Kapela, Amato, Cochran, Evslin, Ganaden, Garrett, Hussey-Burdick, Lowen, Marten, Miyake, Nakashima, Perruso, Poepoe, Takayama, Todd Onishi, and Takenouchi as well as Senators Lee, Rhoads, Chang, Keohokalole, San Buenaventura. We also like to extend our gratitude to partner organizations at the Hawai’i Alliance for Cannabis Reform including: ACLU of HI, HI Health Harm Reduction, the Drug Policy Forum of hawai’i, Doctors for Drug Policy Reform, Law Enforcement Action Partnership, Chamber of Sustainable Commerce, Council for Native Hawaiian Advancement, Marijuana Policy Project, and Hawaii Cannabis Industry Solutions. We look forward to serving Hawaiians and ensuring cannabis justice is fairly implemented!