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Biden Commutes Sentences of 31 People Who Are Already At Home – Update for May 1, 2023

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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 COMMUTATIONS UNDERWHELM OVER 17,400 PEOPLE

obtaining-clemencyPresident Biden commuted the sentences of 31 federal prisoners last Friday, all of whom are currently on CARES Act home confinement. In each of the cases – involving sentences from 84 to 360 months – the commutation cut their imprisonment-at-home terms to end on June 30, 2023.

The 31 people whose sentences were commuted were doing time for nonviolent drug offenses, but none was in a secure facility. Instead, they were already living at home, working or going to school, attending religious services, shopping, but being confined to their homes otherwise, a White House official said. Nevertheless, the people whose sentences were committed, according to the Biden Administration, “have demonstrated rehabilitation and have made contributions to their community.”

Many of those receiving commutations would have received a lower sentence if they had been convicted of the same offense after passage of the First Step Act.

I don’t doubt that the 31 deserved commutations. My complaint is that addressing overly-long sentences that could no longer be imposed and mass incarceration by commuting 31 sentences is like bailing the ocean with a spoon.oceanclemency230501

The 31 commutations appeared to be window dressing to last Friday’s announcement of the White House’s broader initiative that aims to bolster the “redemption and rehabilitation” of people previously incarcerated through greater access to housing, jobs, food and other assistance. The announcement came at the end of Biden’s proclaimed “Second Chance Month,” which the White House says is an attempt to put a greater focus on helping those with criminal records rebuild their lives.

The “second chance” effort, described in a Dept of Justice 66-page Strategic Plan Pursuant to Section 15(f) of Executive Order 14074 issued last Friday, is an ambitious plan to provide rehabilitation services to federal and state prisoners, including programs for education, addiction treatment, services to female inmates, reduction of the use of SHUs and the now-obligatory plans to address LGBTQI+ prisoners, especially transgender ones. It promises changes to provide immediate Medicaid healthcare coverage to people being released, access to housing, enhance educational opportunities; expand access to food and subsistence benefits, and provide access to job opportunities and access to business capital.

As part of the push, the Dept of Education will make 760,000 federal and state prisoners eligible for Pell Grants through prison education programs and the Centers for Medicare & Medicaid Services will make some prisoners eligible for limited Medicaid coverage shortly before their expected release.

bureaucracybopspeed230501The plan begs the question of why, with First Step now over five years old, DOJ is only now providing its hagiographic description of what it intends to do. For example, the Dept of Education announced that it would renew the availability of Pell grants for prisoners – once common in the BOP but discontinued as part of the Violent Crime Control and Law Enforcement Act of 1994 – 20 months ago. But so far the BOP has only made access to Pell Grants “currently available through a pilot program to seven sites within BOP, where 300 incarcerated students are enrolled in college courses with two additional sites beginning implementation.”

Thus, with a head start beginning in August 2021, the BOP has signed up only 0.2% of its population for college course (which, incidentally, count for FSA credits).

clemency170206As for the clemency, the President’s commutation action brings the total number of federal prisoners whose sentences he has reduced over more than two years to 111, according to DOJ data. With 17,145 clemency petitions on file, this means that in Biden’s presidency thus far, he has acted on about 0.6% of petitions on file.

Biden’s promise early in his presidency to set up a White House commission to efficiently and fairly assess clemency petitions has never come to pass, just as his two large commutation announcements – 75 commuted in April 2022 and 31 now – appear to have just been a gimmick: heavy with women last year and all on home confinement with nonviolent drug convictions this year. One can only hope the DOJ’s ambitious “strategic plan” is more substantive than the President’s other criminal justice reform initiatives.

The White House, Clemency Recipient List (April 28, 2023)

DOJ, Rehabilitation, Reentry, and Reaffirming Trust: The Department of Justice Strategic Plan Pursuant to Section 15(f) of Executive Order 14074 (April 28, 2023)

Washington Post, Biden grants clemency to 31 drug offenders, rolls out rehabilitation plan (April 28, 2023)

Washington Times, Biden reduces sentences for 31 drug offenders (April 28, 2023)

The Hill, Biden to commute sentences of 31 nonviolent drug offenders, releases new rehabilitation plan (April 28, 2023)

– Thomas L. Root

‘Nothing’ Really IS Sacred – Update for April 25, 2023

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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.

DEPT. OF MEANINGLESS CELEBRATIONS

partytime230425In honor of President Biden’s March 31 proclamation marking April as Second Chance Month, the Dept. of Justice’s Office of Pardon Attorney hosted “A Celebration of Second Chances” last Friday.

The event featured opening remarks by Deputy Attorneys General Lisa Monaco and Kristen Clarke and a panel of DOJ speakers and prior clemency or compassionate release recipients. who will discuss the impact of second chances through clemency. OPA said in a press release that it “is dedicated to supporting the President’s work to provide second chances to individuals who are currently or previously were incarcerated by the federal justice system.”

The event featured a panel of DOJ speakers and prior clemency or compassionate release recipients, who discussed “the impact of second chances through clemency.” OPA said in a press release that it “is dedicated to supporting the President’s work to provide second chances to individuals who are currently… incarcerated by the federal justice system.”

nothing230425Horror-and-fantasy cartoonist Gahan Wilson, whose work fueled my adolescent sense of irony way too many years ago, once drew a cartoon of strangely-clad cultists worshiping an altar festooned with the word “NOTHING” and a large “N.” One skeptic at the side of the crowd is asking another, “Is ‘nothing’ sacred?” Second Chance Month has succeeded in making life intimate art: Biden’s clemency initiative (as was Trump’s) is a ‘nothing,’ and Second Chance Month is worshiping it.

clemency220418Rarely has dedication been accompanied by such institutional failure. About 18,000 clemency petitions languish on file at DOJ, many dating from the Obama era. When elected, Biden promised a restructuring of the clemency process to expand its use and remove what he saw as excesses of the Trump era. That never happened. Biden granted clemency to 81 people last year (as well as people with federal marijuana possession, none of whom was in prison for the offense, had filed for clemency, or – for that matter – has even been publicly identified).

On an ACLU podcast last week, Cynthia Roseberry, Acting Director of the ACLU’s Justice Division, called on Biden “to retrospectively give clemency to people who have been charged previously and are sentenced disparately because they were charged with crack cocaine” during Second Chance Month.

DOJ Office of Pardon Attorney, Second Chance Month 2023 (April 12, 2023)

ACLU, Clemency Is One Answer to the War On Drugs (April 20, 2023)

– Thomas L. Root

Biden Pulls the Plug on CARES Act – Update for January 31, 2023

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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.

CARES ACT HOME PLACEMENT TO END JUNE 10 JUST AS NEW BOP MEMO SURFACES

CARES Act To Expire:  President Joe Biden informed Congress yesterday that he will end the twin national emergencies declared by President Donald Trump 35 months ago.

pullingplug230131The end of the national emergency and the separate public health emergency will restructure federal coronavirus response, treating COVID-19 as an endemic threat to public health that can be managed through agencies’ normal authorities.

Biden’s announcement came in a statement opposing a House of Representatives resolution to be voted on later this week (H.J.Res. 7) to bring the national emergency to an end. Congress has the power to end a National Emergencies Act emergency declaration at any time by joint resolution under 50 USC § 1622(a)(1).

A similar resolution sailed through the Senate last November, suggesting that this one could have done the same, embarrassing the Administration. Biden’s announcement just about assures that the Congressional push against the national emergency will fizzle.

Among the myriad of federal responses mandated by the bloated Coronavirus Aid, Relief, and Economic Security (“CARES“) Act, a $2.2 trillion response to COVID-19 that runs some 324 pages in Volume 134 of the United States Statutes, the Bureau of Prisons was given authority to “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” Practically speaking, this gave the BOP the right to place prisoners on home confinement indefinitely, despite the old 18 USC 3624(c)(2) limitation of 10% of the sentence up to a maximum of six months.

home190109The BOP has placed 52,815 inmates, almost of third of its normal population, on home confinement since CARES passed. The agency has always pumped up the number by including people who would have been sent to home confinement at the conclusion of their sentence regardless of the CARES Act. Nevertheless, there are over 5,600 CARES Act home confines right now.

The CARES Act authority continues during what § 12003(a)(2) calls the “covered emergency period.” This period ends “on the date that is 30 days after the date on which the national emergency declaration terminates.” In other words, with the national emergency ending on May 11, the “covered emergency period” ends on Saturday, June 10th.

So will the BOP continue CARES Act placement until then? It makes economic sense for an agency struggling with an employee shortage, especially where inmates with low-security risk and high maintenance costs (read “costly medical care”), to unload as many prisoners as it can. The BOP’s inmate load has increased since hitting a low in 2020, even before having to absorb some 14,000 federal prisoners from private prisons after Biden ended contracting with private prison operators in his first days as president.

welcomeback181003What will become of the 5,600 on home confinement now? The Administration has taken the position that those on CARES Act home confinement will not necessarily be ordered to return to prison. The BOP, in its typical ham-handed way, issued a memorandum in December 2021 saying it intended to develop a plan to evaluate “which offenders should be returned to secure custody.” It clarified that to say it would propose rules governing the factors to be evaluated in calling people back to prison, but the proposed rules have not yet been announced.

The Dept of Justice did not help matters. Last June, DOJ issued a Notice of Proposed Rulemaking, seeking public comment on a rule that delegated authority to the BOP to decide who would return and who would not. Those rules have not yet been finalized, but you can bet that they will be soon.

New  Memo Is Released:  Meanwhile, yesterday, in response to a Freedom of Information Act request, I received the memo issued last month that gave assistant US attorneys (AUSAs) a say in some CARES Act home confinement decisions. The memo, issued December 21 (not December 19, as a BOP administrative remedy response erroneously stated), “supersedes the Home Confinement memorandum dated April 13, 2021.” I have posted a copy of the memo.

One reference to AUSA approval relates to inmates referred for CARES Act home confinement who have 5 years or more remaining on their sentences. It provides that the BOP’s Residential Reentry Management Office – which manages inmates in halfway houses and on home confinement – will contact the AUSA’s office “in the respective Court of Jurisdiction to solicit input regarding the request for Home Confinement. The input from the AUSA is to be considered among the factors used by the RRM Office in making a Home Confinement decision.”

fox230131The second is if the warden refers an inmate who does not fit the CARES Act criteria for placement. In that case, the referral is sent to the “Home Confinement Committee (HCC)… for further review.” The HCC will contact the AUSA’s office for input regarding the request, and any “input from the AUSA is to be considered among the factors used by the HCC in making a Home Confinement decision.”

Writing in Forbes last week, Walter Pavlo observed that “prosecutors have a role in court proceedings, such as when prisoners apply for compassionate release. In those instances, and based on our adversarial justice system, prosecutors rarely support compassionate release cases. However, those are court proceedings where prisoners, defendants, have an opportunity to support their position and them considered by a judge who makes a decision.”

His point is clear: the new CARES Act memo lets AUSAs dump on inmates without the prisoner knowing what was said, let alone having a chance to refute it. What is more, the BOP has issued no criterion to its staff on how to weigh what the AUSA says.

“To inject prosecutors into what is clearly a BOP decision is unfair,” a former federal prosecutor told Pavlo. “To inject the continued adversarial nature between inmates and prosecutors into what is clearly within the sole purview of a BOP decision can lead to unfair or skewed results.”

On March 26, 2020, and April 3, 2020, Attorney General William Barr set criteria for the BOP Director’s exercise of the power granted by the CARES Act to place inmates in home confinement. Pavlo points out that “nowhere in those memos does it state the role that federal prosecutors have in this process.”

AUSAs may have trouble squaring their complaints about inmates being sent to CARES Act home confinement with the government’s position in the Connecticut habeas corpus case, Tompkins v. Pullen, two months ago. There, the government argued that home confinement was nothing special and gave a prisoner no due process liberty interest.

At all times – whether on HC, at the RRC, or in secure custody… Petitioner has remained a “prisoner.” Although she was in a “community custody” status while designated to HC and supervised by the RRC, Petitioner remained a federal inmate and subject to redesignation to a secure facility if necessary to accommodate her security and programming needs… The halfway house is simply one of the facilities operated by the BOP. It is a different kind of imprisonment than maximum security, just as a supermax facility is different than a prison camp, but it is still imprisonment. The restrictions, although less than in some other facilities, remain onerous.

So CARES Act home confinement is a big deal that needs to be run past the AUSA, or it’s nothing different than any other designation decision. The BOP and AUSA may choose whichever argument is preferred at the time.CARESEnd230131

Unfortunately, it’s clear they only have to choose for the next 130 days. Then, while COVID-19 will still be with us, the CARES Act home confinement program is history.

Associated Press, President Biden to end COVID-19 emergencies on May 11 (January 31, 2023)

H.J.Res.7 Relating to a national emergency declared by the President on March 13, 2020 (January 9, 2023)

Bloomberg Law, BGOV Bill Summary: H. J. Res. 7, End Covid-19 National Emergency (January 27, 2023)

Bureau of Prisons, Home Confinement Criteria and Guidance (December  21, 2022)

Forbes, Federal Prosecutors Have Increased Role In CARES Act Home Confinement Transfers (January 24, 2023)

Attorney General, Prioritization of Home Confinement As Appropriate In Response to COVID-19 Pandemic (March 26, 2020)

Attorney General, Increasing Use of Home Confinement At Institutions Most Affected by COVID-19 (April 3, 2020)

Gvt Memo in Support, Motion to Dismiss (ECF 14-1), Tompkins v Pullen, Case 3:22-cv-00339 (DConn, filed April 13, 2022)

– Thomas L. Root

Are CARES Act’s Days Numbered? – Update for January 24, 2023

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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.

IS CARES ACT HOME CONFINEMENT ON ITS LAST LEGS?

When Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) nearly three years ago, it included an unprecedented home confinement program for federal prisoners that let the Bureau of Prisons designate prisoners to home confinement during the COVID national emergency.

caresbear230124President Trump declared a one-year national emergency because of COVID on March 13, 2020, under authority of the 46-year-old National Emergencies Act (“NEA”). Since then, President Biden has extended it twice, the last time being Feb 18, 2022, each time for one year. Unless Biden extends it again, the COVID national emergency will expire after Feb 28, 2023.

The CARES Act lets the BOP designate inmates to home confinement without regard for the 10%/6 month limitation set out in 18 USC 3624(c)(2) during the “covered emergency period,” which CARES defines as beginning on March 13, 2020, “and ending on the date that is 30 days after the date on which the national emergency declaration terminates.” If Biden does extend the COVID emergency for another year, the CARES Act placement will end on March 30, 2023.

On Jan 11, 2023, the Dept of Health and Human Services extended the COVID-19 public health emergency through at least April 11, 2023. The public health emergency is not the same as the NEA emergency. Politico reported two weeks ago that “senior Biden officials are targeting an end to the emergency designation for Covid as soon as the spring, after debating doing so last summer and taking a pass… The decision, which has not yet been finalized amid more immediate efforts to manage a recent spike in Covid cases, would trigger a complex restructuring of major elements of the federal response…”

Walter Pavlo wrote in Forbes, “While there are other factors involved with the consideration of ending the National Emergency Declaration, prisoner’s health continues to be an issue even today. Prisoners represent a population with substantial added risk for developing COVID-19 due to multiple factors stated by the CDC, including the inability to social distance.

home210218Pavlo notes that while the federal prison population had been decreasing prior to the start of the pandemic in April 2020, despite the CARES Act, the BOP population has increased 2.5% and is now 158,844. “Many in prison are hoping that President Biden extends the Covid-19 National Emergency Declaration until at least Summer 2023 to get a better picture on the trajectory of the virus,” Pavlo wrote. “Continuing the program can only protect lives of prisoners, many of whom will be returning to society in a few years anyway.”

Writing in USA Today last Thursday, Ingrid Jacques said, “Next month, Biden will again consider whether to extend the COVID national emergency declaration that has existed since early 2020. Congress has signaled it’s ready for it to end. In November, the Senate – including 12 Democrats – passed a resolution calling for a termination of the [NEA] emergency. Now that Republicans hold the House, expect that chamber to join in.”

But the death of the NEA emergency may not be at hand. Biden has found the NEA emergency very convenient for mandating change without the need for Congress. Relying on the NEA emergency, Biden “forgave” hundreds of billions of dollars of federal student loan debt. The courts have blocked that plan, and the Supreme Court will hear the argument in early March. If the NEA emergency is not renewed, it could weaken the Administration’s case.

Plus, the Biden administration was in court last week defending its right to order masks on airplanes, buses and trains. The Dept of Justice is arguing that the administration has the authority to require masks in the name of public health.

dontcare170123Axios reported last month that lawmakers who voted to end the NEA emergency “probably aren’t focused on the programs [that would be lost] as much as making a statement that the country has returned to normal… “[The pandemic] is over. I’m going to keep voting until we get it over,” said Sen. Joe Manchin [D-WV]. “We should get back to normal lives.” Sen. Tim Kaine [D-VA] said the Biden administration didn’t provide senators with a good reason to keep it in place – only sending a memo to offices urging a “no” vote 10 minutes after the vote.

Coronavirus Aid, Relief, and Economic Security Act, Pub.L 116-136, 134 Stat 281 (March 27, 2020)

National Emergencies Act, Pub.L 94-412, 90 Stat 1255 (September 14, 1976)

Politico, Biden team eyes end of Covid emergency declaration and shift in Covid team (January 10, 2023)

Forbes, Federal Prisoners Concerned Over End Of CARES Act National Emergency Declaration (January 20, 2023)

Senate, Joint resolution relating to a national emergency (S.J.Res. 63) (November 15, 2023)

Axios, What happens when the COVID national emergency ends (December 9, 2022)

– Thomas L. Root

They Begged His Pardon: Biden Finally Grants Short List at Year’s End – Update for January 5, 2023

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BIDEN GRANTS HANDFUL OF PARDONS

Maybe I was too hasty in criticizing President Biden last week for granting no Christmas clemency petitions, with about 18,000 petitions for commutation or pardon pending (many for years).

pardon160321Biden finally issued pardons to six people last Friday, four for various low-level drug offenses, one for the illegal sale of whiskey, and one to an 80-year-old woman who killed her husband 47 years ago. Three of the crimes had occurred at least a quarter century ago, and the fourth – an Air Force enlisted man convicted of taking (but not distributing) Ecstasy – happened about 20 years ago.

The White House statement said the pardoned people had served sentences and “demonstrated a commitment to improving their communities and the lives of those around them.”

The pardons came on the last business day of the year. In October, Biden pardoned thousands of unnamed people convicted of simple marijuana possession under federal law. In April, Biden granted three pardons and granted 75 commutations.

Two of the five pardoned last week served about two years in prison. Three of the other four served under a year, and the last one got probation.

At trial, the woman who killed her husband – convicted under District of Columbia law – was denied the right to argue that he had beaten her. Her appeal, the White House said, “marked one of the first significant steps toward judicial recognition of battered woman syndrome, and her case has been the subject of numerous academic studies.”

clemencyjack161229Two years into Biden’s Administration, the theme of his clemency policy seems to be that pardons will issue, favoring very simple drug and politically-preferred offenses, when the crime happened a long time ago.  Commutations – which require actually letting people out of prison – seem to be disfavored by this White House.

A day before the pardon announcement, White House Domestic Policy Council Director Susan Rice said that Biden’s marijuana pardons and scheduling directive were among the administration’s top accomplishments in 2022. Biden issued a scheduling review order in October directing the Dept of Health and Human Services to consider rescheduling pot to a lower-level controlled substance.

Associated Press, Biden pardons 6 convicted of murder, drug, alcohol crimes (December 30, 2022)

White House, Clemency Recipient List (December 30, 2022)

Ibn-Thomas v. United States, 407 A.2d 626 (1979)

Marijuana Moment, Top White House Official Lists Biden’s Marijuana Pardons And Scheduling Review Among Top 2022 Administration Achievements (December 30, 2022)

– Thomas L. Root

No Clemency from Santa Biden This Year – Update for December 29, 2022

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LISAStatHeader2small-newyear

CHRISTMAS CLEMENCIES ARE A BUST

Congress is not the only underperforming branch of government this year. So far this month, President Biden granted traditional year-end clemencies to the following:

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clemency170206That’s right… to no one.

Last week, sentencing law experts (and law professors) Mark Osler and Rachel Barkow took Biden to task for using the tool of clemency for symbolism rather than substance, while ignoring clemency’s official process.” Saying that he has acted like former President Trump, Osler and Barkow – writing in the New York Daily News – complained that while 17,000 petitions (it’s closer to 18,000) have piled up — a “historic backlog — and many petitioners have been waiting for answers for five years or more.”

Osler and Barkow wrote that “like Trump, Biden has simply ignored those thousands of people waiting for consideration of their heartfelt pleas for clemency; in fact, he has failed to deny a single petition by presidential action even as the pile has grown into a tower. While many clemency petitions are worthy, many others are obviously not, and it shouldn’t be hard to say “no” to the weakest petitions. Like Trump before him, Biden seems either frozen in inaction or just doesn’t care.”

Biden’s commutation so far of 82 people for nonviolent offenses (and the vague pardons to unnamed marijuana possessors) “are more about signaling and politics than helping real people,” Barkow and Osler said.

clemency220418For all of the Biden Administration’s hand-wringing over retroactively remedying the crack-powder sentencing disparity that was embraced by the failed EQUAL Act (S.79), MSNBC reported last week, “Biden, who supported the proposed legislation, could remedy these past injustices with clemency, but he hasn’t done so, despite issuing pardons ahead of the midterm elections for cannabis possession.”

NY Daily News, Biden’s cowardice on clemency (December 20, 2022)

MSNBC, Racist war on drugs is the real winner of Congress’s massive spending bill (December 23, 2022)

– Thomas L. Root

LISAStatHeader2small-newyear

Hopes for Marijuana Criminal Justice Reform In This Congress May Be Dead – Update for December 6, 2022

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“REEFER MADNESS” AS SENATE DEMOCRATS SELL OUT ON POT CRIMINAL JUSTICE REFORM

reefer181210It turns out not to matter that voters want cannabis reform, or that the MORE Act has passed the House and probably could have passed the Senate by a filibuster-proof majority, or even that Senate Majority Leader Charles Schumer said just a few weeks ago that he was pushing for marijuana reform this year.

On Saturday, Axios broke the news that Schumer would bring the Secure and Fair Enforcement Banking Act (H.R. 1996) to a vote, giving up on comprehensive reform that included expungement of federal marijuana trafficking convictions. The compromise legislation does not legalize marijuana on a federal level, leaving pot as a Schedule I drug, like heroin and LSD.

The MORE Act (H.R. 3617) is dead. The replacement Cannabis Administration and Opportunity Act (S. 4591) – which also included retroactive expungement of federal marijuana convictions – also appears to be dead. The only measure that could include any criminal justice reform is the National Defense Authorization Act (H.R. 8900), which the House may use as a vehicle for drug criminal justice reform.

Instead, Democrats in the Senate will push to liberalize banking access to the cannabis industry. The SAFE Banking Act would provide a “safe harbor” for regulated banks to work with cannabis firms in states where cannabis is legal.

Schumer says he will “more than likely” attach the legislation to a must-pass year-end bill like the NDAA, which gets a vote annually. The House of Representatives attached the EQUAL Act (H.R. 1693) to the NDAA last July 19 with bipartisan support, but no one is talking about the Senate doing the same.

ironyalert220523Ironically, the Schumer package also reportedly includes the Harnessing Opportunities by Pursuing Expungement Act of 2021 (H.R. 6129), known as the HOPE Act. According to a bill summary, the measure “authorizes the DOJ to make grants to states and local governments to reduce the financial and administrative burden of expunging convictions for state cannabis offenses.” In other words, Congress will authorize money to help states expunge marijuana convictions, but it won’t lift a finger to expunge federal convictions.

Yesterday, House lawmakers delayed committee consideration of the NDAA amid disagreements over key issues. Democratic leaders had hoped to see the NDAA advance with marijuana reform provisions attached.

The House Rules Committee was expected to take up the NDAA on Monday, but Chairman Jim McGovern (D-MA) deferred consideration, saying the “package is not ready yet.”

Abandonment of cannabis criminal justice reform by the Senate Democrats – who torpedoed the MORE Act to begin when Sen Cory Booker (D-NJ), Sen Ron Wyden (D-OR) and Schumer introduced the alternative CAOA – came at the end of a week in which the New York Times criticized last month’s Biden mass pardon of people with marijuana simple possession convictions. The Times reported, “And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.”

warondrugs211028The Times observed that Biden was a “champion of aggressive drug laws earlier in his career, including the 1994 crime bill that led to mass incarceration,” although “he has more recently embraced leniency for those convicted of minor drug offenses.” Biden has said he does not support legalizing marijuana, “putting him at odds with 80% of self-described Democrats and 68% of Americans, according to a Gallup poll released this month,” The Times said.

The SAFE Banking Act is an incremental change in cannabis laws, being rolled out just as Marijuana Moment editorialized for taking such an approach. “It’s time to acknowledge that incrementalism is not selling out, it is not crumbs, and it is not failure,” the website said last week. “Failure is continuing to lock up our citizens while we quibble over who gets the spoils of a post-prohibition world.”

This leaves the Dept of Health and Human Services study rescheduling marijuana as the best hope for any change leading to sentencing reform. Last month, the National Law Journal reported that a panel of consulted legal experts estimated that marijuana will be rescheduled as a Schedule II or III drug by January 20, 2025.

Axios, Scoop: Senate plots pro-pot move for lame-duck (December 3, 2022)

Guardian, Senate Democrats to reportedly push banking reforms for cannabis industry (December 3, 2022)

Fox Business News, Senate aims to attach major marijuana legislation to end-of-year ‘must-pass’ bills: report (December 3, 2022)

Catholic News Agency, Bishops urge passage of bill that would give same sentences to crack and powder cocaine offenders (August 11, 2022)

Marijuana Moment, Democrats’ Focus On Social Justice Marijuana Bills Has Blocked Achievable Progress On Reform (December 2, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

Marijuana Moment, Fate Of Marijuana Banking Reform Uncertain As Lawmakers Delay Defense Bill Consideration Amid Disagreements (December 5, 2022)

– Thomas L. Root

Pardoning Turkeys, Not People – Update for December 1, 2022

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BIDEN TURKEY PARDONS DRAW CRITICISM

President Joe Biden continued a 75-year tradition last week, pardoning a pair of North Carolina turkeys named Chocolate and Chip after his favorite flavor of ice cream.

turkeypardon221201“The votes are in, they’ve been counted and verified,” Biden said, granting the pardons. “There’s no ballot stuffing. There’s no fowl play.”

Vote counting apparently did not include the over 18,000 people whose applications for pardons or commutations are piled up at the Dept. of Justice Pardon Attorney’s office.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, referred to the ceremony as “the annual turkey pardon silliness at the White House.”

clemencybacklog190904Reason magazine was not much kinder to Biden’s clemency for those convicted of simple marijuana possession announced in October. The mass pardon was “an example of all hat and no cattle,” Reason said. “‘I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,’ [Biden] said in October. ‘None…’ But not a single person was released from custody by the Bureau of Prisons due to Biden’s proclamation… The presidential pardon power can and should be used more often. Not just for turkeys, but for the thousands of people serving decades due to draconian drug laws that Biden supported for most of his political career.”

Associated Press, Biden opens holidays, pardons turkeys Chocolate and Chip (November 21, 2022)

Sentencing Law and Policy, Does Prez Biden’s clemency record in 2022 deserve some praise on the day of turkey pardons? (November 21, 2022)

Reason, Pardon People, Not Turkeys (November 23, 2022)

– Thomas L. Root

Federal Criminal Justice Reform May Still Have a Pulse – Update for November 14, 2022

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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.

STILL HOPE FOR CRIMINAL JUSTICE REFORM

hope170313As of today, the Democrats have retained control of the Senate and may even keep the House of Representations (although that is still up in the air). In the House, the Republicans still need six seats to win while the Democrats need 13, but that’s a far cry from last Thursday, when the Dems were down 36 seats to the Republicans’ 7-seat deficit.

Reason reported that “while rising crime created headwinds for candidates who supported criminal justice reform, the apocalyptic reaction never quite materialized… Despite predictions that rising violent crime would sink candidates that backed criminal justice reforms, those candidates mostly survived Tuesday night’s elections.”

So there remains a glimmer of hope that criminal justice reform issues that remain unfinished as of the end of this Congress in January will be resurrected for the next 2-year legislative session.

At the same time, there are hints that the lame-duck session – which begins today for at least another 17 legislative days before Christmas – will take up two bills ready for Senate passage, the EQUAL Act (S.79) and MORE Act (HR.3617)

lameduck221114Princeton University Professor Udi Ofer, former ACLU Deputy National Political Director, said last Thursday that in “the lame duck session… I can see some popular bipartisan reforms pass Congress, including on criminal justice reform. The EQUAL Act, which would end the sentencing disparities between crack and powder cocaine, has more than 10 Republican co-sponsors in the Senate so it can withstand a filibuster and seems ripe for some action this lame-duck session. Same could hold true for federal marijuana reform.”

Last Monday, President Biden – who looks a lot stronger today than he did a week ago – again called on Congress 

to end once and for all the racially discriminatory crack-powder cocaine sentencing disparity and make the change fully retroactive. This step would provide immediate sentencing relief to the 10,000 individuals, more than 90% of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.

As we reported last week, even if the next Congress is divided, Marijuana Moment said, “there would still be a range of legislative possibilities for cannabis reform, including (most optimistically) descheduling.”

marijuana160818Because key players like Senate Majority Leader Chuck Schumer (D-NY) and Senate Finance Committee Chairman Ron Wyden (D-OR) are likely to retain their positions and are dedicated to marijuana reform, “they have pretty good leverage over the House if they want to bring them to the table on the issue,” Marijuana Moment reported.

Washington Post, Democrats keep control of the Senate with win in Nevada (November 12, 2022)

Real Clear Politics, 2022 House Races (November 14, 2022)

Reason, The Crime Backlash Mostly Failed To Materialize on Election Night (November 9, 2022)

Princeton University School of Public and International Affairs, SPIA Reacts: Scholarly insights on the mid-term elections (November 10, 2022)

The White House, The Biden-⁠Harris Administration Advances Equity and Opportunity for Black Americans and Communities Across the Country (November  6, 2022)

Marijuana Moment, Here’s What The Midterm Congressional Election Results Could Mean For Federal Marijuana Reform (November 10, 2022)

– Thomas L. Root

Clock Running Out on Drug Reform – Update for October 14, 2022

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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.

EXPERTS PESSIMISTIC ABOUT MORE ACT, EQUAL ACT

clock160620Even as a record 68% of the country favors marijuana legalization, according to a recent Gallup poll, a cannabis industry reporter last week said passage of the MORE Act or something else that decriminalizes marijuana is a long way off. “Five experts on politics in the weed industry I spoke with mostly agreed,” Sean Teehan wrote, saying the largest hurdles are a gridlocked Congress, a lack of political incentives for lawmakers to support legislation – or significant pro-cannabis reform – and an absence of consensus on what legislation should look like in practice.”

According to John Hudak, deputy director of the Center for Effective Public Management and the senior fellow in governance studies at the Brookings Institution, the main reason legislation is extremely unlikely to pass in the current congressional session ending on Jan 6, 2023, is that the issue simply doesn’t have enough support in the Senate.

“The votes just aren’t there – they’re barely there in the House. Democrats don’t even have the 50 votes in the Senate for it, and they need 60,” Hudak said.

The situation doesn’t look brighter following the November elections, said Jay Wright, a partner at an Alabama law firm and editor of the National Law Review. “I think if you see Republicans take the House in this upcoming midterm I think it’s going to be a gridlocked government and I don’t know if this is going to be the kind of issue that’s going to be on the front burner,” Wright said.

The EQUAL Act has been attached to the House version of the National Defense Authorization Act by Rep Mikie Sherrill (D-NJ). The amendment is one of a large number of riders attached to the NDAA, few of which ever survive passage of the annual appropriations bill.

marijuana160818“Whether senators will go along with enacting any of these reforms in the final bill remains to be seen,” Marijuana Moment reported last week, “but they would not be included under Senate leaders’ proposed amendment to entirely substitute the language of the House bill with the chamber’s own approach that will be considered when lawmakers return to Capitol Hill after the midterm elections.”

In fact, some suggest that the President’s administrative review of the scheduling of marijuana may be a trap. “Legalizing via Congress is (relatively) quick and easy,” Bruce Barcott wrote this week in Leafly. “The MORE Act, which would end the federal prohibition of marijuana, has now passed the House twice, but does not currently have enough support in the Senate.”

However, the Biden review is fraught with peril, Barcott says:

This order will be slow-walked by the FDA and DEA. They will run out the clock on the first Biden Administration.

If Biden is defeated in 2024, his Republican successor will kill the initiative. Even if the FDA and DEA come in with a shocking report advocating the removal of cannabis from the federal drug schedule, the new president will simply round file it. This has, sadly, happened before. If you don’t know the notorious story of President Nixon and the Shafer Commission, I invite you to wallow in that infamous chapter of American history.

If President Biden wins a second term in 2024, the outcome could be even worse.

If Biden presses DEA and FDA to act, his “fresh look” at marijuana’s status could result in a decision to keep it as Schedule I or re-schedule cannabis as a Schedule II substance. Both would be disastrous for pot decriminalization.

This is not likely to end well.

NY Cannabis Insider,  An honest take on the likelihood of federal marijuana legalization (October 3, 2022)

Marijuana Moment, Senators File NDAA Amendments To Legalize Medical Marijuana For Military Veterans And Protect VA Home Loan Benefits (October 3, 2022)

Leafly, President Biden’s marijuana ‘review’ could be a deadly trap (October 13, 2022)

– Thomas L. Root