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Matt Gaetz: Mere Anarchy at the Dept of Justice – Update for November 19, 2024

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

THINGS FALL APART

thingsfall241119I tuned out the poetry we studied in high school English, which makes me wonder why President-elect Donald Trump’s announcement last week that Matt Gaetz would be his Attorney General made me recall W.B. Yeats’ work, The Second Coming:

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world;

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned…

Trump has vowed to execute every prisoner on federal death row, to expand the federal death penalty to include drug traffickers and migrants who kill U.S. citizens, to use the military to round up and run out immigrants, and to grant all law enforcement officers immunity from criminal prosecution.

Writing in The Watch last week, Radley Balko observed that Trump “of course promised to weaponize federal law enforcement to settle grudges, exact retribution, and protect his interests.”

Congressman Matt Gaetz (R-FL) is slated to serve as Attorney General. Gaetz, whose legal career spans about three years as a junior associate in a small Florida law firm, has never tried a case nor managed an enterprise, but he’s intended to run the Dept of Justice, of which the Bureau of Prisons is a part.

pervert160728In 2020, Gaetz was accused of child sex trafficking and statutory rape over claims that he paid a 17-year-old high school student for sex. Following an investigation, DOJ decided not to seek charges, concerned that it might not be able to prove the charge beyond a reasonable doubt. Gaetz resigned from the House last week just before the House Ethics Committee was to release a report on the sex charges, alleged drug use and other misconduct.

One DOJ official said of the nomination, “What the f— is happening?!” Another said that Gaetz is the “least qualified person ever nominated for a position in the Department of Justice.”

MSNBC admitted that “in a sense, everybody is unqualified” to serve as Attorney General, because DOJ “is so deep, broad and complex that no one can come in truly prepared for all of it. Nobody comes in knowing everything about tax or antitrust or civil rights or criminal or civil or environmental work. They do not know the intricacies of the work of its many divisions, from the Federal Bureau of Prisons to the Federal Bureau of Investigation.” But, MSNBC argued, AGs need “three qualities: integrity, judgment and independence. With those qualities, you can handle the job… [W]ith Gaetz, you might end up with somebody who is wholly unqualified for the job coupled with somebody who lacks integrity, judgment and independence.”

But why should federal prisoners care? It might be beneficial to have a man who had once been a DOJ target running things.

dungeon180627Don’t count on it. As a state legislator, Gaetz sponsored a bill requiring the Florida governor to sign death warrants for prisoners on death row as soon as their appeals were exhausted. Last July, Gaetz toured El Salvador’s notorious Terrorism Confinement Center where, CNN reported, “convicts and pretrial detainees “spend 23½ hours a day in bleak group cells, eat a bland meatless diet and have just 30 minutes a day for exercise or Bible class.”

“There’s a lot more discipline in this prison than we see in a lot of the prisons in the United States,” Gaetz said at the time. “We think the good ideas in El Salvador actually have legs and can go to other places and help other people be safe and secure and hopeful and prosperous.”

In other transition news, Sen. John Thune (R-SD) will serve as Majority Leader—the person who will control which bills are voted on—in the new Senate, which convenes on Jan 3, 2025. Thune has consistently opposed even modest marijuana reform proposals, once calling legalization a “dangerous path.”

In 2021, Thune acknowledged that marijuana is an “area that’s still evolving, and our country’s views on it are evolving,” adding that “how we deal with it nationally, is still an open question.”

President Biden promised in 2022 that rescheduling marijuana from Schedule I to Schedule III – which could lead to the easing of criminal penalties – would be done by the end of 2024. A DEA hearing on the matter is set for December 4. It’s not clear that final rules can be rolled out before a new and possibly hostile Congress is seated.

Radley Balko – Substack, The “broligarch” threat to criminal justice reform (November 13, 2024)

NBC, Justice Dept. employees stunned at Trump’s ‘insane,’ ‘unbelievable’ choice of Matt Gaetz for attorney general (November 10, 2024)

MSNBC, An attorney general needs 3 qualities to be successful. Matt Gaetz doesn’t even have one. (November 14, 2024)

CNN, Matt Gaetz would oversee US prisons as AG. He thinks El Salvador’s hardline lockups are a model (November 14, 2024)

Marijuana Moment, Every GOP Senate Majority Leader Candidate Opposes Marijuana Legalization (November 12, 2024)

– Thomas L. Root

Senators Push for Massive Biden Clemency Push – Update for November 18, 2024

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

SENATORS URGE BIDEN TO COMMUTE THOUSANDS OF SENTENCES

President-elect Trump may accomplish something this month that no one has yet been able to do yet: get President Biden to wield his clemency powers.

release161117Senate Democrats are pressuring Biden to shorten the sentences of thousands of federal drug prisoners incarcerated before he leaves office. In a letter sent to Biden October 21st but only surfacing last week, seven Senate Judiciary Committee members plus an eighth Senator urged Biden to commute drug mandatory minimums that were shortened by the First Step Act but not retroactively.

The FSA cut mandatory life under 21 USC § 841(b)(1)(A) for one prior drug conviction from 20 to 15 years and for two priors from life to 25 years. The change started out in the legislative process to be retroactive, but retroactivity was amended out of the bill before passage to secure Republican votes.

The group of Democrats, led by Senate Judiciary Committee chairman Richard Durbin (D-IL), is urging Biden to categorically lower the sentences of people sentenced under § 841(b)(1)(B) mandatory minimums so they match what they would have received under the First Step Act amendment. In some cases, sentences would be cut to time served.

“[O]ver 8,000 federal clemency petitions are awaiting decision,” the letter notes. “You have granted only 25 pardons and 131 commutations thus far, denying nearly 8.000 petitions.’ We respectfully request that your Administration act with urgency to grant relief to deserving individuals and further reduce the clemency backlog… One significant step in the right direction would be to grant categorical relief to incarcerated individuals who were sentenced under harsh mandatory minimums that the bipartisan First Step Act substantially reduced.”

Sen Peter Welch (D-VT), one signer, said, “President Biden should heed our call and use the power of executive clemency while he has it.”

crackpowder160606The letter also urges Biden to use clemency to cut the sentences of people convicted for crimes related to crack cocaine who would face less time in prison if crack and powder cocaine were punished at a one-to-one ratio and urged him to restart Obama’s clemency initiative, which granted clemency to nearly 1,700 people – mostly for drug offenses – who met certain qualifications.

“The letter came just weeks before Election Day,” Politico noted last week. “But it reflects concerns that have only intensified since Trump won the White House.”

At the same time, pressure is intensifying to convince Biden to commute the death sentences of the 40 people on federal death row. Their crimes range from drug-related murders to murder in a national park to terrorist killings and the fatal shooting of a bank guard during a robbery.

Of 50 federal executions in the past century, Trump carried out 13 of them in six months beginning in July 2020. Trump has promised to execute everyone on death row in his next Administration.

The ACLU last week called on Biden to “act now to finish the death penalty reform work his administration began in 2020. He must commute the sentences of all people on federal death row to stymie Trump’s plans and to redress the racial injustice inherent to capital punishment.”

The Atlantic last week called on Biden to offer pardons to Liz Cheney, a former Republican Congresswoman who served on the House January 6th Committee, Chairman of the Joint Chiefs of Staff Mark Milley, prosecutor Jack Smith, and “to all of Trump’s most prominent opponents.” Trump and his allies have promised to prosecute them for imagined crimes arising from prosecuting, investigating or just criticizing him since the January 6, 2021, riot.

Politico, Biden faces pressure from Hill Democrats to grant clemency for drug crimes (November 13, 2024)

Letter to President Biden from Sen Durbin et al (October 21, 2024)

Slate, Joe Biden Can Preemptively Halt One Brutal Trump Policy (November 12, 2024)

ACLU, Biden Must Use Final Months in Office to Commute Federal Death Sentences (November 14, 2024)

The Atlantic, Pardon Trump’s Critics Now (November 13, 2024)

– Thomas L. Root

Biden’s Clemency Clock Is Running Out – Update for September 27, 2024

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

CALL FOR BIDEN TO STEP UP ON CLEMENCY

clemencypitch180716In an opinion piece in last week’s New York Times, law professors Rachel Barkow (a former Sentencing Commission member) and Mark Osler – both recognized federal clemency experts – called on President Joe Biden to reverse his “paltry record on clemency” by creating a record in his final four months in office “he can point to with pride.”

Biden has granted 25 pardons and commuted 131 sentences, “a mere 1.4% of the petitions he has received,” they wrote. “Clemency is more important than ever in an era of grossly excessive punishments and mass incarceration. Timidity is not a path to legacy, and the accumulated harms of presidents’ ignoring for years the power to issue clemency can be seen in the over 8,000 petitions that are pending, many of them more than five years old.”

So Biden’s shakeup of the Office of Pardon Attorney last December, which included throwing out overripe clemency petitions, resulted in about 9,800 petitions being rejected. Another 2,000 have been added since then. As of today, DOJ reports, 8,678 petitions are pending.

obtaining-clemencyBarkow and Osler suggest that Biden should commute the death sentences of the 40 federal prisoners on death row to life in prison. Another group deserving of commutation, they suggest, are the inmates at home on CARES Act home confinement. Finally, they argue that “Biden should release those still in prison for trafficking marijuana, which means manufacturing or distributing it, or both. Those are now legal activities in a number of states. His blanket pardon for only possession and use was needlessly limited, and he should expand it to its logical and just conclusion.”

Stephen Post from the Last Prisoner Project noted in USA Today last week that about 3,000 individuals are still incarcerated in federal prison for nonviolent marijuana offenses.

New York Times, Biden Needs to Work on His Clemency Legacy (September 18, 2024)

USA Today, Biden promised no jail time for weed. He’s running out of time to pardon cannabis convicts (September 15, 2024)

– Thomas L. Root

No Free Drinks While You Lose to the House – Update for July 16, 2024

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

LONG ODDS

compeddrink2400716There’s a difference between Las Vegas and asking the Bureau of Prisons to bring a compassionate release motion under 18 USC § 3582(c)(1)(A) on your behalf. In Vegas, they comp you drinks while you’re trying to beat impossible odds.

Under § 3582(c)(1)(A), a prisoner seeking grant of a compassionate release sentence reduction from his or her court must first ask the BOP to file the motion on the inmate’s behalf. This provision was a bone thrown to the BOP when Congress – disgusted after years of the BOP being the exclusive gatekeeper for compassionate release motions without using the authority as Congress intended (or even competently, for that matter) – changed the statute as part of the First Step Act to empower inmates to file directly for compassionate release. Just so the Director wouldn’t pout that power had been stripped from the BOP to lord it over prisoners even beyond control needed for legitimate penological purposes, Congress wrote in a requirement that the prisoner ask the BOP to file the motion on the inmate’s behalf before the inmate was able to bring the motion on his or her own motion.

Of course, in the real world, this creates no incentive for a warden, who has three choices when confronted with such a request:

• If the warden grants the prisoner’s compassionate release request, a package justifying the recommendation that the BOP involve a U.S. Attorney to bring the motion has to be prepared and forwarded to the BOP Regional Office. If the Regional Office approves, the request goes to the BOP Office of General Counsel. If the GC OKs it, it goes to the Director. If the Director approves it, the motion must be prepared by the appropriate US Attorney and filed with the prisoner’s sentencing judge.

•  If the warden denies the request, a document must be prepared and delivered to the prisoner explaining the denial, after which the prisoner may file a motion with his or her sentencing judge.

• If the warden ignores the request, after 30 days the prisoner may file a motion with his or her sentencing judge.

Knowing that a bureaucracy, like water and electricity, seeks the path of least resistance, which of these options is the easiest for the warden? Or which is least likely to reflect badly on the prison administration if a compassionate release turns into a Willie Horton?

denied190109The Dept of Justice knows. In its First Step Act Annual Report – June 2024, the DOJ disclosed that from January 2019 — the first time prisoners could file for compassionate release on their own — through January 2024, prisoners filed 32,991 motions for compassionate release in federal courts. Of that number, the BOP approved 172 such requests. Of that number, 127 approvals were based on the prisoner’s terminal illness, 39 approvals were based on the inmates’s debilitated medical condition, two approvals were for “elderly inmates with medical conditions,” and four requests were based on sexual abuse the prisoner experienced while in custody.

In other words, BOP compassionate release approval stands at 0.5214%, about one out of 200.

And what of those requests for compassionate release that prisoners filed after being turned down? The Sentencing Commission reports that through March 2024, 32.412 such motions had been filed in court, and 5,190 of those (16%) had been granted. Every one of those 5,190 grants was first rejected as unworthy by the BOP.

The rule in the BOP? Deny, deny, deny. Or maybe ignore, ignore, ignore.

So why should the prisoner not just take the commutation route, asking President Joe Biden – who promised to fix the exercise of presidential clemency – for early release?

clemency231222Axios reported last weekend that President Biden has continued a trend of increasingly stingy grants of commutation or pardon. In four years, Jimmy Carter granted 21.6% of clemency petitions. Ronald Reagan granted 11.9% over eight years. Bill Clinton granted 6.1%, Barack Obama 5.3%. Even Donald Trump granted 2.0%.

So far, excluding Biden’s meaningless mass pardon of marijuana possession offenses that promised 13,000 pardons but has so far only delivered for about 205 people, Biden has granted 1.3% of clemency requests, the lowest percentage of any president in at least the last 50 years.

A clemency petition passes through seven layers of review, a cumbersome process Biden has worsened by requiring input from the Domestic Policy Council. Mark Osler, a law professor and expert on clemency, said, “Biden seems to be stuck with is a system of analysis that doesn’t work and hasn’t worked for his predecessors either.” 

Frank Bowman, a law professor who has written extensively on the pardon power, cited the “nasty politics of our era” as a significant factor in making the use of clemency power problematic.

horton230317No president wants to needlessly create a Willie Horton moment, to grant clemency to someone in prison who then commits a new offense that becomes grist in the campaign mill.

Thus, denial (or just inaction) becomes as appealing to a president as it is to a warden.

US Sentencing Commission, Compassionate Release Data Report – Fiscal Year 2024, 2nd Quarter

Dept of Justice. First Step Act Annual Report – June 2024

Axios, Why presidents are wielding their pardon powers less and less (July 13)

– Thomas L. Root

One Toke Over The Line, Sweet Jesus! – Update for May 17, 2024

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

DOJ PROPOSES RESCHEDULING MARIJUANA

onetoke240517If you remember Brewer & Shipley’s 1970 unlikely hit, “One Toke Over the Line” – a song conceived and written in a pot-induced fog – you were probably not there to hear it. The song became so popular that even Lawrence Welk – who reportedly didn’t know what a ‘toke’ was – had his in-house singers cover the hit on his show.

The Dept of Justice yesterday proposed changing the classification of marijuana from a Schedule I drug–that is, one with no medical use and a high potential for abuse–to a Schedule III substance–one with a moderate to low potential for physical and psychological dependence.

In a document known as a Notice of Proposed Rulemaking (NPRM), the DOJ suggests moving pot from a classification shared with heroin, MDMA and LSD, to one containing medically useful substances like Tylenol with codeine, ketamine, anabolic steroids and testosterone.

marijuanahell190918The proposed rule, to be published in the Federal Register, “recognizes the medical uses of cannabis and acknowledges it has less potential for abuse than some of the nation’s most dangerous drugs,” according to the Associated Press. A 60-day public comment period will begin after the NPRM is published, along with a review of the proposed regulatory reforms by a Drug Enforcement Administration administrative law judge. In all likelihood, a final rule will be pushed out by the Administration before the November election.

The proposal would not legalize marijuana outright for recreational use nor does it directly affect criminal statutes or people serving federal sentences for marijuana cultivation or distribution. Nevertheless, it is likely an incremental step toward making changes in marijuana Sentencing Guidelines and scheduling in the penalties sections of 21 USC 841(b)(1)(A) and (B).

The DOJ proposal comes on the heels of a Dept of Health and Human Services Department review of marijuana scheduling, begun at the urging of President Joe Biden in October 2022.

Biden posted a video on the X (formerly known as Twitter) in which he said the proposal to move pot to Schedule III constitutes “an important move towards reversing longstanding inequities.”

marijuana221111“Today’s announcement builds on the work we’ve already done to pardon a record number of federal offenses for simple possession of marijuana,” the president said. “Look, folks, no one should be in jail for merely using or possessing marijuana. Period… Far too many lives have been upended because of a failed approach to marijuana and I’m committed to righting those wrongs. You have my word on it.”

Writing in Reason, C.J. Ciaramella said

On the campaign trail in 2020, Biden promised to ‘decriminalize the use of cannabis,’ but despite lamenting the injustices of marijuana convictions and the barriers they create, and despite the continuing collapse of public support for marijuana prohibition, Biden still opposes full-scale legalization. Instead, his administration has focused on mass pardons and other measures that largely leave those injustices in place… But even getting the DEA to acknowledge that marijuana is not a drug on par with LSD and heroin is a victory of sorts.

While encouraged by the DOJ action, Cynthia W. Roseberry, director of policy and government affairs at the ACLU’s Justice Division, cautioned, “The rescheduling does not end criminal penalties for marijuana or help the people currently serving sentences for marijuana offenses. It is time for the federal government to further reduce prosecution of marijuana and instead put more resources towards investments that help communities thrive.”

Associated Press, Justice Department formally moves to reclassify marijuana as a less dangerous drug in historic shift (May 16, 2024)

Reason, DEA Moves To Reclassify Marijuana as a Schedule III Drug (May 16, 2024)

ACLU, ACLU Applauds President Biden’s Announcement to Reclassify Marijuana, Calls for More Reform (May 16, 2024)

– Thomas L. Root

Feds To Reschedule Marijuana As Prescription Drug – Update for May 3, 2024

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

MARIJUANA BECOMING OFFICIALLY ‘COOL’

mrnatural240503The Justice Department last Tuesday said that it had recommended easing restrictions on marijuana in what could amount to a major change in federal policy.

A DOJ spokeswoman said the proposed rule, which hasn’t yet been made public, would downgrade marijuana from Schedule I to Schedule III, making it obtainable with a prescription.

The change does not end the criminalization of the drug. However, it is a significant shift in the government’s view of the safety and use of marijuana for medical purposes and reflects President Biden’s effort to liberalize marijuana policy in a way that puts it more in line with the public as increasingly more Americans favor legalizing the drug. The proposal would recognize the medical uses of marijuana and acknowledge it has less potential for abuse than some of the nation’s more dangerous drugs.

Rescheduling would not legalize marijuana outright for recreational use. But there can be little doubt that such a change–recreational cannabis (the politically popular term for marijuana) is now legal in 24 states–is coming.

The change may also lead to beneficial changes in Section 2D1.1 of the U.S. Sentencing Guidelines, where the base offense level for marijuana could drop in response to its falling from Schedule I to III.

In October 2022, Biden pardoned thousands of people convicted of simple marijuana possession under federal law and called upon regulators to review whether the drug should be reclassified, saying “it doesn’t make sense” that the government controls pot more tightly than cocaine or fentanyl.

marijuanahell190918Once the Office of Management and Budget signs off, the DEA will take public comment on the plan to move marijuana from its Schedule I–alongside heroin and LSD–to Schedule III, alongside ketamine and some anabolic steroids. After public comment and review by an administrative judge, the agency will publish the final rule.

“Today, the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III,” DOJ Director of Public Affairs Xochitl Hinojosa said in a statement. “Once published by the Federal Register, it will initiate a formal rulemaking process as prescribed by Congress in the Controlled Substances Act.”

The Los Angeles Times said, “Late last year, Biden pardoned people who were convicted of using marijuana on federal land. That tiny step was merely a down payment on his promise of decriminalization. So is the Justice Department’s most recent move. The federal government should pick up the pace.”

Some in the government may have done so. Last Wednesday, Senate Majority Leader Charles Schumer, (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR), and Sen Cory Booker (D-NJ) reintroduced the Cannabis Administration and Opportunity Act, legislation to end federal marijuana prohibition by removing it totally from the Controlled Substances Act.

The bill also aims to empower states to create their own cannabis laws; ensure federal regulations protect public health and safety; and prioritize restorative and economic justice, according to the sponsors.

marijuana221111While the DEA’s move to reclassify marijuana is a “necessary step” that’s “long overdue,” Schumer said, it’s not the end of the story. “It’s not all we need to do,” he said. “It’s time for Congress to wake up to the times and do its part by passing the cannabis reform that most Americans have wished for. It’s past time for Congress to catch up with public opinion and to catch up with the science.”

New York Times, Justice Dept. Recommends Easing Restrictions on Marijuana (April 30, 2024)

Wall Street Journal, Biden Administration Aims to Reclassify Marijuana as Less Dangerous Drug (April 30, 2024)

Associated Press, US poised to ease restrictions on marijuana in historic shift, but it’ll remain controlled substance (April 30, 2024)

Los Angeles Times, Editorial: Reclassifying marijuana is not decriminalization, but is a welcome step in that direction (May 1, 2024)

Cannabis Business Times, Senate Democrats Introduce Bill to Federally Legalize Cannabis (May 1, 2024)

S.4226, A bill to decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes (May 1, 2024)

– Thomas L. Root

Biden Brings Forth A Clemency Mouse – Update for April 25, 2024

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THE INCREDIBLE SHRINKING COMMUTATION

As has been his recent habit, President Joe Biden capped off Second Chance Month yesterday by granting clemency to a whopping 16 people. Of these, 11 were pardons of people who have been out of prison for an average of about 20 years. Only five were commutations of people currently serving sentences, and of the five, a total of zero will walk out of prison today.

mouse170822

Biden said in a statement that many of the people getting clemency had received “disproportionately longer” sentences than they would have under current law. The White House clemency list made a point of that, too, although the relevance of that to a pardon of someone who’s been out for 20 years is dubious.

The Associated Press said Biden “is grappling with how to boost support from communities of color that heavily supported him over Republican Donald Trump in the 2020 election.”

Biden trumpeted that “[l]ike my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety.”

Overaching commitment? Biden, who promised during his 2020 campaign to reform the federal clemency system, has done slightly better than President Trump, a pretty low bar. At this point in his presidency, Trump had pardoned 28 to Biden’s 24, but only commuted sentences on 11 to Biden’s 129. At this point in his first term, President Obama had pardoned 39 to Biden’s 24, but only commuted the sentence of a single inmate.

Bidenclemencystats240425

Of course, by the time he was done, Obama had granted commutations to 1,712 prisoners.

Biden apparently didn’t find as many commutation petitions to love as he did during last year’s Second Chance Month, when he granted commutations to 31 people. This year, he said the five who had their sentences commuted “have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.”

He didn’t think the same of the 2,501 pardon and 5,402 commutation petitions he has quietly denied in the last six months.

What’s more, Biden’s commutations have fallen from 79 in Fiscal Year 2022 (October 2021-September 2022) to 34 in FY 2023 and only 16 in the first half of FY 2024. He is not likely to grant any clemency in the remainder of this Fiscal Year.

freedrinks240425By the numbers, over the last six months, a prisoner’s commutation petition had a 44.77% chance of being denied, a 55.19% of not being acted on, but only a 0.04% chance of being granted.

At least in Vegas, when the house gives you odds like that, it usually comps you drinks.

Associated Press, Biden pardons 11 people and shortens the sentences of 5 others convicted of non-violent drug crimes (April 24, 2024)

The White House, Clemency List (April 24, 2024)

The White House, Statement from President Joe Biden on Clemency Actions (April 24, 2024)

– Thomas L. Root

Biden Gets a Second Chance – Update for April 11, 2024

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

BIDEN’S SECOND CHANCE TO GET SECOND CHANCE MONTH RIGHT

second170119President Biden has again designated April as Second Chance Month, the eighth annual proclamation since Charles Colsen’s Prison Fellowship convinced Congress to recognize April for that purpose in 2017.

Biden used the proclamation as a chance to burnish his Administration’s achievements in promoting second chances for prisoners, including what he called “over 100 concrete actions that my Administration is taking to boost public safety by improving rehabilitation in jails and prisons, helping people rebuild their lives, and reducing unnecessary interactions with the criminal justice system so police officers can focus on fighting crime.”

So far, those “actions” have not included much use of the presidential clemency power. In. The Hill, Rev. Terrence McKinley said that despite Biden’s annual “call to prioritize criminal justice reform and the clemency process in the United States,” he has only exercised his pardon power to grant 13 pardons and 124 commutations, less than one percent of the thousands of pending applications.”

Rev. McKinley, pastor of the Campbell AME Church in Washington, DC, wrote that

A pardon is an act of grace. But such acts of grace should not be so rare…. By exercising his pardon power more robustly, President Biden has the opportunity to paint a stark contrast with his predecessor… [T]here are thousands of people with criminal records whose applications for clemency have been languishing in the federal system—people who are currently in prison serving overly harsh sentences and people who have been released long ago but live with the looming threat of deportation, barriers to employment and housing, and other forms of civil death.

obtaining-clemencyLast April, Biden commuted the sentences of 31 prisoners already on CARES Act home confinement.

Proof of Biden’s commitment to clemency may be reflected in White House response to the DOJ Office of the Pardon Attorney. The OPA recently published its FY 2025 President’s Budget Submission, requesting $12.5 million (a 16% increase) to add to petition processing staff. OPA has 40 employees (including 26 attorneys) now. Its not-especially-ambitious goal is to increase the number of cases on which it makes a recommendation in a year from 30 to 35% and to increase the amount of correspondence answered in one month from 90 to 92%.

There is an undercurrent of unhappiness, even among Biden supporters, over his lukewarm embrace of federal criminal justice reform. Eric Alexander, a formerly incarcerated Black man, who now works for the Campaign for the Fair Sentencing of Youth, was recently asked by a member of the legislature about Biden’s record on criminal justice compared to his predecessor, Donald Trump, who signed the First Step Act into law. Alexander said, “It is my belief that if the last administration was allowed to be in office again, that we wouldn’t be here having this conversation. That administration would have dealt with this…”

promise210805St John University law prof Mark Osler, a clemency expert, said on CNN, “Alexander wasn’t deluded, tricked or unknowledgeable. While Trump promised nothing on criminal justice reform but still did something significant, Biden promised a lot but so far has done nothing of real substance. For those of us who don’t want Trump to be re-elected, this is an uncomfortable truth, but to Biden and his campaign, it should be a call to action.”

White House, A Proclamation on Second Chance Month, 2024 (March 29, 2024)

The Hill, This Easter, I pray for pardons (March 31, 2024)

CNN, Biden’s failures in criminal justice could cost him an election (March 26, 2024)

– Thomas L. Root

Does Biden Overpromise, Underdeliver on Marijuana Reform? – Update for March 11, 2024

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

BIDEN PROMISES ON MARIJUANA HAVE SKEPTICS

marijuana221111Marijuana reform got some billing in President Biden’s State of the Union (SOTU) speech last Thursday, as he highlighted (and perhaps overstated) his Administration’s actions toward pot reform.

Biden noted that he has “direct[ed] my Cabinet to review the federal classification of marijuana” – an action begun in October 2022 and to be completed by the end of this year – and he claimed he is “expunging thousands of convictions for the mere possession because no one should be jailed for simply using or having it on their record.”

The sweep of Biden’s pardons is debatable. “While the pardons have symbolically forgiven convictions, they did not eliminate criminal records entirely,” the Green Mountain Report observed last week. “Additionally, these pardons have not impacted individuals currently serving sentences in federal prisons for marijuana-related offenses that exceed simple possession.”

“Biden made two promises on marijuana reform on the 2020 campaign trail—to decriminalize marijuana use and expunge records—and he has failed to deliver either,” Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, said in a Friday response the SOTU. “Biden’s pardons haven’t released anyone from prison or expunged anyone’s records.”

potscooby180713Reason magazine noted last week that “in 1972, the same year that Biden was elected to his first term in the US Senate, the National Commission on Marihuana and Drug Abuse recommended decriminalization of marijuana possession for personal use. It also recommended that “casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense.”

Fifty-two years later, we’re getting there but slowly. Federal marijuana trafficking cases declined yet again in 2023 as more states legalized the leaf, according to the USSC 2023 Sourcebook of Federal Sentencing Statistics, published last Tuesday. This continues a decade-long trend of pot prosecutions “dropping precipitously amid the state-level reform push and shifting federal enforcement priorities,” Reason said. In 2013, the Feds reported 5,000 cannabis-related prosecutions. Last year, there were under 800.

Last week, The Hill reported on a Pew Research Center finding that more than half of Americans live in a state where recreational marijuana is legal. A full 74% of Americans live in a state where marijuana is legal for medical use.

mcconnell180219Also last week, Senate Minority Leader Mitch McConnell (R-KY) announced he is stepping down from his leadership post in November. McConnell has earned a reputation as an anti-drug senator, despite his work pushing the First Step Act through the Senate and the legalization of hemp in the 2018 farm bill. He has been firmly opposed to even modest marijuana reform. Because the minority leader will run the Senate if his party flips the 51-49 chamber to a Republican majority, the person occupying that position is a hair’s breadth from being able to control what drug reform bills the Senate will take up.

Marijuana Moment, Biden Promotes Marijuana Reform In State (March 7, 2024)

Green Market Report, Biden touts cannabis policy changes in State of the Union (March 8, 2024)

Drug Policy Alliance, The Drug Policy Alliance Responds To The 2024 State Of The Union Address (March 8, 2024)

Reason, Biden’s Inaccurate and Inadequate Lip Service to Marijuana Reform Ignores Today’s Central Cannabis Issue (March 8, 2024)

US Sentencing Commission, 2023 Sourcebook of Federal Sentencing Statistics (March 5, 2024

The Hill, 79% of Americans live in a county with legal cannabis dispensary: report (March 4, 2024)

Marijuana Moment, Is Mitch McConnell Stepping Down Good For Marijuana Reform? It Depends Who Replaces Him (March 5, 2024)

– Thomas L. Root

Why We Should Expect Nothing from Congress This Year – Update for January 23, 2024

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

BIDEN’S DISAPPEARING SUPPORT FOR CRIMINAL JUSTICE REFORM

The emails are unrelenting. When will the Second Step Act pass? What is Congress doing for people with 18 USC 924(c) convictions? Is it true they’re bringing back CARES Act home confinement? And the old favorite: How about the 65% law?

nothinghere190906My answers have not changed: Never.  Nothing.  No.  And ‘there’s no 65% law.’

Back when he was a candidate in 2020, President Biden staked out big, bold stances on criminal justice reform. We imagined what The Hill last week called “a ground-up reworking of the carceral state,” with all First Step Act changes in gun and drug crime law becoming retroactive, substantial marijuana decriminalization, passage of the EQUAL Act… As The Hill put it, “Biden’s vows of far-reaching reform were so numerous that the Prison Policy Initiative had to limit itself to listing only his five biggest pledges in a post-election recap. The Marshall Project called Biden’s criminal justice platform “the most progressive … of any major party candidate in generations.”

Four years later, Biden’s criminal justice reform efforts have brought forth a mouse. His grand 2020 pledges have disappeared from his website, and “a shroud of silence has fallen over Democratic offices when queried about the issue,” as BNN described it last week.

Last week, the Dept of Justice reported that Federal arrests during fiscal year 2022 were up 24% from the number in FY 2021. Immigration offenses accounted for 24% of those arrests, supervised release violations were almost as numerous at 23%, and drug trafficking offenses accounted for 21%.

nothing190906

It is significant that criminal justice reform people – who usually have nothing good to say about President Trump – are comparing Biden’s reform record unfavorably to Trump’s, whose First Step Act “has shown positive results, with those released under it being less likely to reoffend, demonstrating that federal criminal justice reform can be effective,” BNN said.

So what happened? The Hill says Biden’s abandonment of meaningful criminal justice reform

has been driven in large part by a wildly successful Republican messaging campaign. GOP politicians, aided by a friendly network of right-wing media outlets, have spent much of their time since 2020 selling American voters on the fiction that crime is surging. They’ve also made sure those Americans know to lay the blame on so-called “soft on crime” Democrats, whom they universally portray as eager to release dangerous felons onto the street. That messaging helped Republicans rack up wins that cost Democrats control of the House.

“The states are all still passing criminal justice reforms or fighting for them,” Crime and Justice News quoted Lorenzo Jones of the Katal Center for Equity, Health and Justice as saying. “The people doing that are all local, but those local people have been largely shut out of the national spotlight.” Burns believes that Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform. He urges Biden to bring together “neglected criminal justice reform groups and do[] some much-needed listening.”

nothing190924Terrence Coffie, an adjunct assistant professor at New York University (and a man whose first academic achievement was getting his GED in 1993 while serving a drug trafficking sentence), said Biden could turn around his abandonment of criminal justice reform by leading an effort to repeal the Violent Crime Control and Law Enforcement Act of 1994, an “outdated and draconian piece of legislation…” that has “perpetuat[ed] harm rather than fostering justice.” Writing in Forbes last week, Walter Pavlo said Coffie “believes it is a critical step towards rectifying historical injustices and forging a more equitable path forward for marginalized communities.”

Just don’t expect any steps along that “equitable path” to be taken in 2024, with Democrats frightened of criminal justice reform and Republicans decrying a violent crime wave sweeping America.

The Hill, What happened to Biden’s promises on criminal justice reform? (January 17, 2024)

BNN, Biden’s Criminal Justice Reform: Promises Unfulfilled Amidst Political Play (January 17, 2024)

DOJ Office of Justice Programs, Federal Arrests Increase 24% After Falling to a 20-Year Low (January 18, 2024)

Crime and Justice News, Have Biden, Other Dems Caved On Criminal Justice Reform? (January 19, 2024)

Forbes, Biden’s Mixed Messaging On Criminal Justice Reform (January 15, 2024)

– Thomas L. Root