Pollyanna Sees Great Future For EQUAL Act – Update for April 5, 2023 | Legal Information Services Associates LLC

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HANDICAPPING CRIMINAL JUSTICE REFORM

There’s not been much good news lately coming from Washington about reform of federal criminal laws, making a Washington Post piece last week noteworthy (if a bit too optimistic).

The Post admitted that the 117th Congress “in this tense partisan atmosphere” is likely to produce anything “along the lines of the First Step Act… some lawmakers and outside advocates say there are still opportunities to pass more limited legislation to make the criminal justice system less punitive.”

Partisan? Really?

The article cited the EQUAL Act (introduced in February in the Senate as S.524 and the House as H.R. 1062) to eliminate the disparity in federal sentencing for trafficking crack and cocaine. The bill passed the House on an overwhelming bipartisan vote in 2021 but was never brought to a vote in the Senate. It also noted the bipartisan task force formed last month to push legislation easing barriers to prisoners reentering society.

The EQUAL Act has broad support. Just last week, the conservative Americans for Tax Relief wrote Congress supporting the two bills, saying that “the sentencing disparity that currently exists between crack and powdered cocaine… has needlessly imposed sentences 100 times longer for possession of crack cocaine than the powdered counterpart, and despite some reform a large difference remains.”

“There’s a ton of Republicans that just want to do the right thing,” David Trone (D-MD) said last Tuesday. “And there’s a minority of Republicans who live on the rhetoric of, ‘Let’s stop everything.’”

Jason Pye, who lobbied for First Step at the conservative FreedomWorks group, said reform legislation might start moving once House Republicans tire of passing bills that stand no chance of clearing the Democratic-controlled Senate. “As far as I’m concerned, this is one of the few areas where there is not only bipartisan consensus, but support [from across the Republican] conference to do something,” the Post quoted Pye as saying.

However, besides being tragedies in their own right, events such as last week’s school shooting in Nashville hobble criminal justice reform efforts, especially in making First Step changes to 18 USC § 924(c) retroactive. Some Democrats want more than incremental progress on remaking the criminal justice system, especially after Monday’s school shooting in Nashville that left six dead.

Rep Jamie Raskin (D-MD) worked as a state senator on legislation eliminating state-law drug mandatory minimums and abolishing the death penalty. “I’m very open to that,” Raskin told the Post. “The problem is that we are in the midst of a nationwide gun violence crisis where we are losing tens of thousands of people every year, and we need real action there.”

Raskin, who served on the House Jan. 6 committee, also criticized Republicans for bemoaning the conditions of the D.C. jail holding those charged with attacking the Capitol. Rep Marjorie Taylor Greene(R-Ga.) led a visit to the jail last Friday.

But Armstrong and some conservative criminal justice advocates said they thought Republicans’ concerns about the Jan. 6 defendants might spur interest in the bills they’re working to pass. Armstrong, for instance, is working on a bill that would require federal prosecutors to certify that they’ve provided defendants with all exculpatory evidence before judgments are entered against them.

“That would be good for the Jan. 6 defendants, but it would [also] be good for every criminal defendant in federal court,” Armstrong said.

“When you have these highly charged political issues, I think the good side is, we may be calling attention to issues I’ve really cared about for a long time, and I get a new audience that may not have necessarily cared about them before,” Armstrong added.

Highly charged, indeed. Writing in Ringside at the Reckoning, William G. Otis (a former AUSA and DEA advisor) blasted the EQUAL Act: “The Post is hiding the ball by saying that the bill would just “eliminate the disparity” in sentencing between crack and powder cocaine. How exactly would it do that? … The answer, you will have guessed, is not to bring the penalties for each more nearly together, but solely to lower crack penalties.’

Otis, whom President Trump nominated to the Sentencing Commission but (thankfully) was never confirmed by the Senate, wrote that “lowering of penalties for a dangerous drug is exactly what the country needs ‘for its safety’ after two consecutive years in which, for the first time in our history, America suffered more than 100,000 drug overdose deaths — a critical fact nowhere to be found in the Post’s story.’

In fact, nothing is sacred anymore. The New York Times reported last week that Florida governor Ron DeSantis “see[s] the signature criminal-justice law enacted by Mr. Trump in 2018 as an area of weakness with his base, and Mr. DeSantis has indicated that he would highlight it when the two men tussle for the Republican nomination, according to three people with knowledge of Mr. DeSantis’s thinking. That law, known as the First Step Act, reduced the sentences for thousands of prisoners.”

A perfect storm of people and events that coalesced to result in First Step – a senior White House official in the conservative Trump Administration whose father had done federal time, a liberal black justice activist who bucked criticism from the left to work with people seen as racist, a bill that disappointed the right for going too far and the left for not going far enough – is not on the horizon right now. The film The First Step, a 90-minute documentary about the role Jones played in lobbying for prison reform, started streaming yesterday on Amazon Prime and Vudu, describes the improbable personalities and pressures that brought about passage of First Step, and reminds us that “it is important to work for bipartisanship if you want to get anything meaningful done in Congress,” according to San Diego Jewish World.