We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE YEAR BEGAN WITH SUCH HOPE, TOO…

At the end of the first 11 months of President Biden’s administration, a combination of his lack of action on criminal justice reform, a razor-thin majority in Congress, and an ill-timed spike in crime is rapidly undercutting hope of criminal reform.

As New York magazine put it last week, “The president is now facing a new political context. In the previous two years, cities across the United States have seen historically large spikes in multiple categories of crime, including homicides in many places… The sense that things are terrible — even if they are happening during a multi-decade downward trend in crime rates and have likely been exacerbated by a global pandemic — seems to be costing the president politically as well. The results of an ABC/Ipsos poll published on Monday showed that just 36% of Americans approve of Biden’s handling of crime, down from 43% in late October.

Critics working to overhaul the criminal justice system say they’re frustrated with the Biden administration after waiting nearly a year for the White House to take significant clemency and sentencing reform steps. “I think we’re at a point where we’re saying mere lip service isn’t enough,” said Sakira Cook, senior director of the justice reform program at the Leadership Conference on Civil and Human Rights. “We want to see some concrete action.”

“To me, it’s a bellwether,” said FAMM President Kevin Ring. “Because if the administration won’t address this, and address it immediately, I don’t know what hope we can have that other things are going to get done.”

A White House spokesman defended Biden’s record, arguing that he had restored the Dept of Justice’s Office for Access to Justice, implemented new restrictions on chokeholds and no-knock warrants for federal law enforcement, ended contracts with private prisons, and expanded access to re-entry services for released inmates. And critics admit DOJ’s rescission of the Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And just this week, DOJ walked back the Trump-era Office of Legal Counsel opinion that CARES Act home confinees had to return to prison after the national pandemic emergency ends.

Still, there’s no denying that the federal prison population dropped under Presidents Obama and Trump but has increased by some 5,000 people during Biden’s 11 months in office.

To be sure, Biden’s plans were never well thought out. As Ralph Behr pointed out last week in the South Florida Criminal Defense Lawyer Blog, Biden’s campaign last year called for passage of the Safe Justice Act, a bill killed by the House in 2017. He also called for abolishing mandatory minimums, which would require amending hundreds of statutes, something that “would require bipartisan support for an issue that has historically proven controversial. This is unlikely to gain enough support even to be drafted. The more likely and admirable implementation would be to allow judicial discretion in sentencing below the minimum mandatory sentence.”

As the Leadership Conference on Civil and Human Rights demanded last week, Biden and his DOJ could expand CARES Act and compassionate release access. Or, as the Daily Caller suggested, he could demand that the BOP and its union clear up the logjam on implementing First Step Act earned time credit programs.

Legislatively, there’s one bright spot: The Hill reported this past weekend that Congressional Democrats are gearing up for a sweeping set of initiatives aimed at decriminalizing marijuana in spring 2022.

The proposals would, among other things, purge the criminal records of thousands of marijuana offenders and be retroactive for those serving marijuana sentences.

“The growing bipartisan momentum for cannabis reform shows that Congress is primed for progress in 2022, and we are closer than ever to bringing our cannabis policies and laws in line with the American people,” Reps. Earl Blumenauer (D-Oregon) and Barbara Lee (D-California) wrote in a memo to the Congressional Cannabis Caucus on Thursday.

Just last week, Marijuana Moment complained last week that “this is yet another example of legislators taking a demand for reform directly to the president, who has disappointed advocates in his first year in office by declining to take meaningful steps to change the country’s approach to cannabis despite campaigning on a pro-decriminalization and pre-rescheduling platform.”

On crack cocaine, Biden could push Senate Democrats to pass S.79, the EQUAL Act, which has already passed the House and has cleared the Senate Judiciary Committee. Last week, Sen. Susan Collins (R-Maine) because a co-sponsor.

The Justice Action Network issued a statement saying, “With this level of bipartisan support, the drumbeat grows louder for Senate Majority Leader Chuck Schumer (D-NY) to vote the EQUAL Act. In New York, more than twenty leading New York-based civil rights, racial justice and criminal justice organizations recently sent an urgent letter to Leader Schumer urging him to move the EQUAL Act through the Senate, ‘by any means necessary’…”

New York magazine, Biden’s Low Marks on Crime Are Killing Reform (December 15, 2021)

South Florida Criminal Defense Lawyer Blog, Analyzing President Joe Biden’s Criminal Justice Reform Plan (December 14, 2021)

NPR, Activists wanted Biden to revamp the justice system. Many say they’re still waiting (December 12, 2021)

Leadership Conference on Civil and Human Rights, Letter to Attorney General Merrick Garland (December 17, 2021)

Daily Caller, The First Step Act Is A Giant Leap Toward Meaningful, Bipartisan Prison Reform (December 13, 2021)

The Hill, Congress to take up marijuana reform this spring (December 18, 2021)

Marijuana Moment, GOP Lawmakers Blast Biden And Harris Over ‘Continued Silence’ On Marijuana And Urge Rescheduling (December 16, 2021)

Seattle Medium, It’s Time For The U.S. Senate To Pass The EQUAL Act (December 17, 2021)

Justice Action Network, Senator Susan Collins Joins Bipartisan Sentencing Reform Bill, Positioning Equal Act for Passage (December 15, 2021)

– Thomas L. Root