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

SENATE CRITICIZED FOR INACT… – SQUIRREL, SQUIRREL!

Readers all seem to wonder why the EQUAL Act (S.79), a bill that would finally equalize punishment for crack cocaine and powder cocaine offenses, could pass the House of Representatives with an 85% vote last year and have over 60% support in the Senate (and support of the leadership), but still be sitting around with no vote in sight.

After the House passed EQUAL last fall, Ohio State University law professor Doug Berman wondered in his Sentencing Law and Policy blog whether the Senate would “move quickly to finally right a 35-year wrong?”

Nope. In a commentary last week, FAMM President Kevin Ring explained why thousands of families are still waiting for the Senate to act:

The Senate is broken. And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake…

So what’s the problem? Senators may have to vote on amendments that get offered to the bill and they are scared. They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis. In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments. But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber. The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.

Add to that explanation another one. Just like I can easily distract my dog by shouting, “Squirrel, squirrel!” and pointing in some direction, the Senate is easily distracted. The Ukraine crisis needs a big weapons bill, a mass shooting needs a debate on gun control, a Supreme Court decision leak needs a spate of bills on abortion… every crisis in the headlines disrupts Senate business.

A bill to fund the fight against the next COVID wave, battles over gun control and abortion (sure to be fired up with Supreme Court decisions on both due this month), and the fact that a third of senators are up for re-election, all make focus on EQUAL – which should be an easy lift – difficult.

Berman said last week, “I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be.”

Of all the criminal justice reform measures before Congress – including the First Step Implementation Act (S. 1014), the Safer Detention Act (S. 312), the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – EQUAL is the one closest to the finish line. If EQUAL can’t get to a final vote in the Senate, it’s hard to imagine any other measure getting to the President’s desk, either.

Medium, The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction (June 2, 2022)

Sentencing Law and Policy, Hoping it is not yet time to give up on passage of the EQUAL Act (June 2, 2022)

PBS, Congressional stalemate makes a quick compromise on COVID funding unlikely (June 1, 2022)

– Thomas L. Root