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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

Biden’s “Safer America Plan” Backs EQUAL Act – Update for August 12, 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.

SAFER AMERICA PLAN  BACKS EQUAL ACT, BUT IS IT ENOUGH?

President Biden rolled out a “Safer America Plan” last week, a proposal to address public concern about crime rates that is probably intended to blunt the issue before November’s midterm elections.

The Plan represents the President’s hopes and not a firm legislative proposal. But amid the $35 billion proposal to support law enforcement, gun control, and crime prevention, the Plan “calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.”

This, of course, is the EQUAL Act (S.79).

EQUAL would provide immediate sentencing relief to an estimated 10,000 inmates – more than 90% of whom are black – currently serving time in federal prison pursuant to the crack/powder disparity, according to the White House.

President Biden’s backing of the EQUAL Act is not surprising, but in the wake of a big Democrat win in Congress last week on the Inflation Reduction Act, the Senate may have the energy to tackle EQUAL. It will have to be after the August recess, and that brings it within 60 days of the November election. It still looks likely nothing will happen on EQUAL until after the November 8th midterm election.

In an August 1st letter to Congress, the United States Conference of Catholic Bishops pressed for passage of EQUAL. “We cannot ignore the racial impact of current federal cocaine sentences when Blacks are more than three times as likely to be convicted for crack cocaine trafficking as for powder cocaine trafficking,”  Bishops Paul S. Coakley and Shelton J. Fabre wrote.

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An amendment to add the EQUAL Act to the National Defense Authorization Act (H.R. 4350) passed the House of Representatives on July 19 with bipartisan support.  But the likelihood that the provision will survive Senate passage of the NDAA is low:  Unrelated amendments are routinely attached to NDAAs but are often negotiated out in the process of reconciling House and Senate versions of the bill.

The Catholic News Agency report on the bishops’ letter suggests that despite broad support, EQUAL’s future may be bleak:

The EQUAL Act has an uncertain future in the Senate. Since it has 11 Republican co-sponsors, it could pass as a stand-alone bill. However, the ranking Republican member of the Judiciary Committee, Sen. Charles Grassley, has his own bill to address disparities in drug sentencing. His legislation would reduce but not eliminate the disparity. 

White House, Safer America Plan (August 1, 2022)

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

– Thomas L. Root

Biden Orders More CARES Act Placement – Update for June 1, 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.

BIDEN EXECUTIVE ORDER BREATHES NEW LIFE INTO CARES ACT HOME CONFINEMENT

President Biden last week instructed the Dept of Justice to “continue to implement the core public health measures, as appropriate, of masking, distancing, testing, and vaccination in federal prisons,” an order which specifically includes CARES Act home confinement.

home210218The Executive Order as well directs DOJ to update the BOP’s COVID-19 testing procedures, update “protocols with alternatives to facility lockdowns and restrictive housing to prevent the spread of COVID-19; and determine how many individuals who meet the requirements to be released on home confinement.”

The BOP directives came as a virtual footnote to an executive order President Biden signed on the second anniversary of George Floyd’s killing by Minneapolis police.

The Executive Order declared in Section 1 that the Administration’s policy is to ensure that “no one should be required to serve an excessive prison sentence.” To that end, the Order states, “My Administration will fully implement the First Step Act, including by supporting sentencing reductions in appropriate cases and by allowing eligible incarcerated people to participate in recidivism reduction programming and earn time credits.”

DOJ has been directed to update its “regulations, policies, and guidance in order to fully implement the provisions and intent of the First Step Act, and shall continue to do so consistent with the policy announced in section 1 of this order.”

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The Order also requires DOJ to adopt “a strategic plan and timeline to improve PATTERN, including by addressing any disparities and developing a needs-based assessment system.”

E0 14074, Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (May 25, 2022)

Government Executive, Biden Moves to Improve Public Health Conditions in Federal Prisons and Jails (May 26, 2022)

– Thomas L. Root

President Packs USSC With Some Good Picks – Update for May 12, 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.

SENTENCING COMMISSION DROUGHT IS LIFTING

noquorum191016President Biden yesterday nominated a bipartisan slate of seven candidates to serve as commissioners on the U.S. Sentencing Commission. If confirmed, the nominees will revitalize the USSC, giving it its first quorum in almost four years.

The list includes U.S. District Judge Carlton W. Reeves (Southern District of Mississippi). If confirmed by the Senate, he will be the first black jurist to chair the 33-year-old commission’s history.

By statute, the Commission must be bipartisan and consist of at least three federal judges and no more than four members of each political party.

Biden’s planned nominees include three active judges and four attorneys. Of those nominees, two have experience as public defenders. Nominees also include

• Laura Mate, a former assistant federal public defender in the Western District of Washington, serves as Sentencing Resource Counsel for the Federal Public and Community Defenders in Arizona;

• Judge Luis Felipe Restrepo, appointed by President Obama to serve on the US Court of Appeals for the Third Circuit and a former assistant federal public defender in the Eastern District of Pennsylvania;

• Claire McCusker Murray, formerly principal deputy associate attorney general in the Dept. of Justice during the Trump Administration;

• Judge Claria Horn Boom, appointed by President Trump to the U.S. District Courts for both the Eastern and Western Districts of Kentucky;

• Former U.S. District Judge John Gleeson (EDNY), a partner at Debevoise and Plimpton LLP, who enjoys close to rock-star status as a forward-thinking sentence reformer;

• Candice Wong, Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia.

USSC170511The Sentencing Commission has lacked a full slate of commissioners for the entirety of the Trump Administration, and has not had a quorum since the First Step Act passed in December 2018. That is why no guideline has been amended since the November 2018 amendments went into force.

Trump nominated four commissioners in August 2020, two of whom – Judges Restrepo and Boom – were renominated yesterday. Their nominations expired when the Senate did not act on them prior to the end of the 116th Congress in January 2021.

The Commission has a stack of work waiting for its attention, chief among the issues being compassionate release. Last November, the sole remaining member of the Commission at the time, Senior Judge Charles Breyer (N.D. Cal.) complained to Reuters that the lack of quorum meant the Commission could not provide guidance on how to implement compassionate release, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure a sentence reduction under 18 USC § 3582(c)(1)(A)(i) amid the COVID-19 pandemic.

“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the USSC has been powerless to fix things.

Don’t expect immediate miracles. The Commission normally works on a 12-month cycle, with proposed topics for amendments to the Sentencing Guidelines issued late in the year, followed by the actual amendments early in the following year, and a final slate of amendments by May 1. Under the law, the amendments take effect on November 1, unless Congress votes to veto one or all of them.

This means that the most anyone can hope for would be amendments to take effect on November 1, 2023.

progress220512Still, the slate of new commissioners would be the most defendant-friendly bunch to ever run the USSC. Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog yesterday, “Because these selections have surely been made in consultation with Senate leadership, I am reasonably hopeful that hearings and a confirmation of these nominees could proceed swiftly. (But that may be wishful thinking, as was my thinking that these needed nominees would come a lot sooner.) There is lots of work ahead for these nominees (and lots of blog posts to follow about them and their likely agenda), but for now I will be content with just a ‘Huzzah!’”

He’s right.  Its progress, however slow in coming.

Bloomberg Law, Biden Names Seven to Restock US Sentencing Commission (May 11, 2022)

The White House, President Biden Nominates Bipartisan Slate for the United States Sentencing Commission (May 11, 2022)

The White House, President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts (August 12, 2021)

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Prez Biden finally announces a full slate of nominees to the US Sentencing Commission (May 11, 2022)

– Thomas L. Root

The President Grants Clemency, Leaves Fox in Henhouse – Update for April 28, 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.

BIDEN GRANTS CLEMENCY TO 75 PRISONERS

obtaining-clemencyPresident Biden’s announcement of three pardons and 75 commutations last Tuesday receive the expected accolades from the media, which generally like anything Biden does and – in this case – were undoubtedly relieved that no one on the list appeared to be a friend of Joe, a friend of a friend of Joe, or a favored cause of some celebrity who had booked private time with Joe.

The press, if not the public, is still suffering from a little PTSD (“Post-Trump Stress Disorder”). It is somewhat of a relief to see clemency not being used as a political carrot or to be scoring cheap political points.

USA Today said, “The individuals granted clemency came at the recommendation of the Department of Justice’s pardon attorney, according to senior Biden administration officials who briefed reporters about the announcement. It marks a return of a practice that was largely bypassed by former President Donald Trump, whose clemency requests often came through close aides.”

A return to normalcy? Maybe. Not a political act? “Not so fast!” Lee Corso might say.

Filter magazine reported that “Biden’s move appears to be the result of lobbying from a celebrity-connected network of clemency activists, such as Weldon Angelos, a former cannabis prisoner who counts Snoop Dogg among his friends. It carries over a troubling Trump trend for this unique and in practice, arbitrary, presidential power: People with celebrity backing are more likely to receive mercy, while others who are similarly situated don’t.”

clemency170206Recall that the White House said last year that Biden was reforming clemency, and would start granting pardons and commutations in the fall of 2022. So what happened? As CNN explained, President Joe Biden decided to mark “Second Chance Month” by “commuting the sentences of 75 people serving time for nonviolent drug offenses, issuing full pardons for three individuals who the administration says have worked toward rehabilitation and unveiling new actions aimed at easing the transition back to normal life for the formerly incarcerated.” The New York Times said, “Mr. Biden’s top aides described the use of presidential power as part of a broader strategy to overhaul the criminal justice system by relying less on prison to punish nonviolent drug offenders and using employment programs to help prevent the formerly incarcerated from returning to prison.”

I agree with Ohio State University law professor Doug Berman, who said in his Sentencing Law and Policy blog that “though I am still a bit salty that it took Prez Biden 15+ months in office before using his clemency pen, I am pleasantly surprised to see a large number of grants and many commutations to persons serving lengthy terms for drug offenses.” Prof Berman noted what I too thought was an anomaly: 40% of the commutation recipients were female. Only about 7% of the BOP inmate population are women.

Other interesting numbers: While the clemencies were widely seen as addressing marijuana convictions, this was not the case at all. Only 7% of the commutations were for a marijuana-only offense, and 12% for offenses that included marijuana. However, 40% of the commutations were for offenses involving methamphetamines, 28% involved cocaine powder, 12% involved crack, and 5% involved heroin. The meth number is especially interesting, in that Congress has shown not just uninterest, but outright hostility to meth offenses. (In the First Step Act, for example, methamphetamines, and heroin are singled out for exemption from eligibility for earned time credits under some circumstances).

Notably, no one who got a commutation had any fentanyl on his or her case.

While Biden noted that “many” of the people receiving commutations “have been serving on home confinement during the COVID-pandemic,” two inmates serving life and one whose life sentence was cut to 240 months in 2014 were among the commutation grants.

Still, this appears to be a nice start. Seventy-five of the 18,000+ clemency petitions on file have been granted. The White House has hinted that more is to come. So why am I complaining?

same160613It’s just this: The New York Times reported that “Mr. Biden based his decisions on clemency petitions sent to the Justice Department, which then made recommendations to the president, according to the White House.” On the campaign trail, Biden promised sweeping changes to criminal justice, including clemency. Previously, we had seen promising signs that Biden was going to cut the Dept of Justice out of the clemency process. DOJ prosecuted and locked up the prisoners to begin with. Having DOJ serve as the gatekeeper for clemency – an act of political grace, not a legal process – is akin to putting the fox in charge of selecting chickens to be released from the henhouse.

Now, about a year after Biden promised a review and possible restructuring of the clemency process, we’re back to the same-old-same-old. I’m not disappointed for the 75 who got clemency… just the 18,000 left behind.

White House, Clemency Recipient List (April 26, 2022)

USA Today, Biden pardons three felons, commutes sentences of 75 others, in first use of clemency powers (April 26, 2022)

CNN, Biden will commute or pardon sentences of 78 non-violent people. Here are a few to know (April 26, 2022)

The New York Times, Biden Uses Clemency Powers for the First Time (April 26, 2022)

Sentencing Law and Policy, Prez Biden finally uses his clemency pen to grant three pardons and 75 commutations (April 26, 2022)

Marijuana Moment, Biden’s first act of cannabis clemency (April 27, 2022)

Filter, Biden’s Clemency Announcement Falls Far Short (April 27, 2022)

– Thomas L. Root

“Say It Ain’t So, Joe” – Biden’s Failure on Criminal Justice Reform – Update for March 7, 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.

WHY NOTHING IS BEING DONE ON CRIMINAL JUSTICE REFORM

nothinghere190906President Joe Biden’s campaign platform included ending the federal death penalty and solitary confinement, decriminalizing marijuana, and using clemency to free federal inmates serving sentences for some nonviolent and drug crimes. “More than a year into the new administration,” Reason magazine reported last week, “few of those promises have been fulfilled.”

More like zero. No clemencies. No bills passed. No retroactive changes to mandatory minimums. No EQUAL Act. Nothing.

Any hopes that might change were dampened after last week’s State of the Union speech, which included nothing of the criminal justice reforms that Biden promised during the campaign.

“Let’s come together to protect our communities, restore trust, and hold law enforcement accountable,” Biden said in the sole reference to reform in his speech. Biden drew bipartisan applause for his calls to fund, not defund, the police.

Biden promised to end private prisons, cash bail, mandatory-minimum sentencing, and the death penalty during his presidential campaign. Candidate Biden also said the United States could reduce its prison population by more than half. As The Marshall Project put it at the time, “Biden has… quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations.”

nolove220307But Biden has discovered that mainstream voters largely do not love the progressive platform. Rising murder rates have made many Democrats hesitant to stray too close to any criminal justice reform. The Democrats’ research recently showed that some voters in battleground districts think the party is “focused on culture wars,” POLITICO reported. The Democrats fear that being soft on crime could cause Democrats to lose substantial ground to the GOP in this fall’s midterm elections.

In fact, the perception among voters – even where the statistics show otherwise – is that crime is on the rise.

But, as Reason put it, “the administration’s effort to forget some of the more tangible reforms it promised is not a profile in courage.” The Biden campaign promised to broadly use clemency for some non-violent and drug crimes, but the White House has been less than clear on when that would happen. Many presidents wait until the final years of their terms to flex their clemency powers. “In the meantime, though,” Reason said, “there are still federal inmates serving sentences in understaffed, dangerous prisons for nonviolent drug offenses — something that Biden supposedly thinks is an outrage.”

Other parts of the federal criminal justice system are being neglected, too. The Sentencing Commission has lacked a quorum since halfway through Trump’s presidency. Thus far, Biden has resisted calls to appoint the four replacements needed. Part of Biden’s platform to “ensure humane prison conditions” included ending solitary confinement, with very limited exceptions. Last week, The Appeal reported a draft White House executive order leaked August would order federal inmates to be housed in the “least restrictive setting necessary.” But the proposed order reportedly outraged law enforcement groups, and the proposal quietly died.

crackpowder160606So how about the crown jewel, the EQUAL Act? Last week, the Attorney General and Deputy AGs Lisa O. Monaco and Vanita Gupta met with members of FAMM and families “who have been impacted by the federal criminal justice system.” A Dept of Justice news release said Associate AG Gupta noted DOJ’s support for the EQUAL Act, saying, “the current sentencing differential between crack and powder cocaine is not based in evidence and yet has caused significant harm in particular to communities of color. It’s past time to correct this.”

Sure it is. But what’s being done in the Senate? Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “every day matters: on average, every single workday, about 5 people — 4 whom are typically black and the other who is most likely Latino — are sentenced based on unjust crack sentencing rules in federal court… Nearly six months after the U.S. House overwhelmingly voted with majorities in both parties in pass a bill to equalize crack and powder penalties, this bipartisan bill remains stuck in neutral in the U.S. Senate.”

Reason, Criminal Justice Campaign Promises Absent From Biden’s State of the Union Speech (March 1, 2022)

Politico, Biden draws bipartisan applause for calls to ‘fund the police’ (March 1, 2022)

The Marshall Project, What Biden’s Win Means for the Future of Criminal Justice (November 8, 2020)

Brennen Center, Criminal Legal Reform One Year into the Biden Administration (January 24, 2022)

Letter to President Biden on Solitary Confinement (June 3, 2021)

The Appeal, Will Biden Step Up On Solitary Confinement? (February 28, 2022)

New York Times, Inside a Near Breakdown Between the White House and the Police (February 2, 2022)

Dept of Justice, Readout of Justice Department Leadership Meeting with FAMM (March 1, 2022)

Sentencing Law and Policy, Why is getting the EQUAL Act through the US Senate proving so challenging? (March 1, 2022)

– Thomas L. Root

Emergency Continues, And So Does CARES Act Home Confinement – Update for February 22, 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.

BOP CARES ACT AUTHORITY EXTENDED

caresbear210104The BOP’s CARES Act authority to place inmates in home confinement expires, according to the law, 30 days after the end of the national pandemic emergency. That emergency was originally declared by President Trump and extended by President Biden. Biden’s last extension was set to expire March 1, 2022, by operation of 50 USC § 1622(d).

Last Friday, Biden extended the national emergency for another year. He said, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. For this reason, the national emergency declared on March 13, 2020, and beginning March 1, 2020, must continue in effect beyond March 1, 2022.”

Section 12003(b)(2) of the CARES Act provides that

During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may 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.

So the BOP authority continues as long as there’s a national emergency and the Attorney General “finds that emergency conditions will materially affect the functioning of the Bureau.” Attorney General William Barr made that finding on March 26, 2020, and again a week later.

home210218What this means is the BOP’s authority to place people in home confinement under the CARES Act will continue for another year unless Attorney General Merrick Garland would decide the BOP no longer needs to decrease population. Given that the BOP must still absorb another 6,085 federal prisoners from private prisons, that inmate totals are trending upward again, and that the BOP is still understaffed, it is unlikely that the AG will abandon the CARES Act any time soon.

The White House, Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-⁠19) Pandemic (February 18, 2022)

– Thomas L. Root

Did the BOP’s New ETC Rules Get Hijacked By Biden? – Update for January 18, 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.

THE UNSEEN HAND WRITES NEW BOP EARNED TIME RULES?

The Federal Bureau of Prisons last week announced final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

In November 2020, the BOP finally got around to proposing rules for granting FTCs under the incentives program authorized two years before in the First Step Act. The agency proposed a rule that would require 240 classroom hours of successful programming in order for an inmate to receive a mere 15 days credit on his or her sentence. At the time, I said, “In the BOP, a 500-hour program takes 12-18 months to complete. That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.”

[Editor’s note: Yes, I said “most chary.” My wife the grammarian, has since pointed out that the superlative of “chary” is “chariest.” I’d fire her, but she’s been right too many times before.]

icecreamsundae210118In my experience practicing administrative law back in the day, when an agency rolled out proposed rules in a Notice of Proposed Rulemaking for public comment, the final product looked a lot like what had been proposed, perhaps with a tweak here and there. Once in a blue moon, an agency might back off after an especially loud and sustained hue and cry from the industry and public, but rulemaking was a lot like ordering an ice cream sundae – you could specify which sprinkle, nuts, sauce, and cherry you wanted on it, but the 95% of it that was ice cream was fixed and was not going to change.

The history of agency rulemaking since the passage of the Administrative Procedure Act of 1946 makes what happened to the FTC rules so puzzling. It’s like the BOP specified an ice cream sundae, but delivered a cup of mashed potatoes and gravy instead.

The new rules, already being applied to hundreds if not thousands of inmates, represent a total repudiation of the BOP’s proposed rules announced a year ago.

I reported on the changes in the rules – the “what” – last Friday. What I didn’t talk about was the “why.” Even now, I am unsure of what caused the sea change at the BOP, but there are some hints. Traditionally, the BOP director has scrambled to imprint any favorable program with his or her initials. Yet, last week, BOP Director Michael Carvajal was strangely silent, while Attorney General Merrick Garland took a victory lap in a press release. The fact that the Attorney General issued a statement supporting the new rules, but Carvajal did not, suggests that the Biden DOJ grabbed hold of the FTC process after the BOP sought to impose Draconian limitations on the program.

sycophant220118Several members of Congress – such as Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, Sheldon Whitehouse (D-RI), John Cornyn, (R-TX) and Cory Booker (D-NJ), on the Senate side, and Hakeem Jeffries (D-NY), on the House side – criticized the proposed rules in public comments. That may have played a factor as well. The BOP’s report adopting the final rule mentioned their comments, such as this excerpt from Sens. Whitehouse’s and Cornyn’s filing:

The proposed rule’s definition of a “day” of program participation does not adequately reward engagement with [EBBR programs] and PAs consistent with the First Step Act. . . Because BOP programs do not run for eight hours per day, the proposed rule would require individuals to attend an EBRR or PA for several calendar days before they earned a full “day” of time credit. . . It was not our intent as drafters of the legislation that BOP define a “day” in this way. Nor did Congress ever consider it. . . The proposed rule’s narrow definition of a “day” does not adequately incentivize program participation and reduce recidivism as intended by the First Step Act.

The fact that the legislators’ comments were singled out approvingly – maybe even fawningly – in the report would permit a reasonable person to infer that the BOP was sending the two Judiciary Committees a message that their concerns were being addressed.

The Hill noted that the new rules were announced “just one week after the DOJ revealed that BOP Director Michael Carvajal would be resigning from his post. He had faced criticism during his time as chief of the bureau.” Fox News said “the Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet.” Associated Press observed that the final rules came “about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs.”

It seemed strange that several media outlets connected the Director’s departure with the release of the rules. It is fair to note that there is no logical reason for his announcing the retirement on January 6th, especially when the actual date was left open (he said he would stay on until a new director is appointed). The timing, as The Hill implied, may be linked to the dramatic turn in the BOP’s approach to FTCs.

bidensuperman210201

Likewise, Fox News may have settled on another reason. President Biden has taken a lot of heat recently for doing nothing on criminal justice reform. Probably because he has done nothing. Hijacking the rules and rewriting them the way Congressional Democrats would love and Congressional Republicans would accept may have been seen by the White House as a cheap fix: liberal FTC rules did not require Congressional approval and conservatives could hardly complain, because all Biden was doing was carrying forward a program President Trump proudly owned, the First Step Act.

Don’t get me wrong. I’m not complaining that the BOP did the right thing. I’m puzzled, that’s all.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, FSA Time Credits (January 13, 2022)

The Hill, Thousands of federal inmates being released this week under law signed by Trump (January 13, 2022)

Fox News, Federal inmates to be released under ‘time credits’ program (January 13, 2022)

– Thomas L. Root

It’s Halftime for the 117th Congress, and Criminal Justice Reform Has Been Held Scoreless – Update for January 3, 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.

WELL, 2021 WAS KIND OF DISAPPOINTING…

NYDTypwrtr220103We all had high hopes for criminal justice reform when President Biden took the White House, and the Democrats won control of the House and Senate. The year 2021 was widely seen as the end of a dark era and the beginning of a brighter one. As Reason magazine said last week, it wasn’t just the close of just any year. It was the end of 2020.

Over the last 12 months, politicians h some steps to advance justice reform. But as is the case with so many New Year’s expectations, quite a bit also stayed the same.

Since Biden’s inauguration, criminal justice reform has taken a back seat to his more prominent initiatives, last March’s American Rescue Plan, the Infrastructure Investment and Jobs Act in November, and the now seemingly-dead Build Back Better social-spending blowout.

Biden did issue an executive order canceling contracts with private prison operators, a nice change for the 14,000 people in those joints. And his Dept, of Justice finally reinterpreted the CARES Act to let people on home confinement stay there. He has promised clemency reform. But the real work is to be done in Congress, w has yet to progress.

If you stayed awake in high school, you recall that every Congress lasts two years. Any bill introduced in the 117th Congress – which began in January 2021 – will stick around until the 117th expires a year from today. That means that the reform bills now in front of Congress still have a chance.

On New Year’s Day, the San Francisco Chronicle called for a targeted bill to abolish mandatory minimums, said, “The good news is that criminal justice reform can be accomplished with relatively limited expenditures — compared to, for example, Build Back Better’s sweeping expansion of the social safety net. That gives it a fighting chance of passing in today’s barely Democrat-controlled Congress.”

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A couple of bills before Congress would reduce but not eliminate mandatory minimums: the EQUAL Act (lowers minimums for crack to equal those of powder) has passed the House but hasn’t yet cleared committee in the Senate; the MORE Act (decriminalizes marijuana retroactively) has been approved by a House committee but has not been passed by the House or Senate; the First Step Implementation Act (makes First Step mandatory minimum reductions retroactive) and the Smarter Sentencing Act (reduces mandatory minimum penalties for certain nonviolent drug offenses only) have not even cleared committee in either the House or Senate.

While the House also passed the MORE Act to decriminalize marijuana, the measure has been dead on arrival in the Senate, where Senate Majority Leader Chuck Schumer (D-New York) announced plans to draft his own version of the bill. The Schumer bill has been released as a working draft but has yet to be formally introduced.

In the House, Republican Rep. Nancy Mace (South Carolina) introduced the first GOP-sponsored bill in Congress to legalize marijuana, hinting that there may be openness to a bipartisan solution in the future. If the Democrats fail to take advantage of the political opportunity in front of them, Forbes said last week, they risk ceding this issue to the Republicans if and when they take back control of Congress, possibly as soon as next year.

When the SAFE Banking Act, a marijuana bill, passed the House last year, it got 106 Republican votes, demonstrating that the GOP can deliver votes on cannabis legislation. But the MORE Act that passed the House in the last Congress – the one with criminal retroactivity – received only five Republican votes. The current MORE Act has collected only one Republican co-sponsor.

cotton181219The problem is that most bills spend months in committee with no movement, or they pass in the House only to the Senate before dying out. And with mid-terms putting all of the House and a third of Senate up for re-election in November and crime rates shooting up, getting legislators on board for criminal justice reform is going to be more challenging.

And then there are demagogues like Sen. Tom Cotton (R-Arkansas). Last week, he wrote in Real Clear Politics:

Unfortunately, soft-on-crime policies have been, at times, a bipartisan problem. In 2018, Republicans passed the pro-criminal First Step Act. That deeply flawed legislation reduced sentences for crack dealers and granted early release to some child predators, carjackers, gang members, and bank robbers. Ironically, this jailbreak bill even provided early release for those who helped prisoners break out of jail. This misguided push by Republicans to win applause from liberals strengthened the hand of radicals like George Soros. In a political environment where the parties compete for who can be more pro-criminal, the Democrats will always win.

People like Cotton make even common-sense federal criminal justice reform a hard sell.

Reason, In 2021, Qualified Immunity Reform Died a Slow, Painful Death (December 30, 2021)

Forbes, The Least Eventful Year for Marijuana (December 31, 2021)

San Francisco Chronicle, Biden’s agenda is stuck. It doesn’t have to be that way with criminal justice reform (January 1, 2022)

S. 79: EQUAL Act

H.R. 3617, MORE Act

S. 1013: Smarter Sentencing Act of 2021

S. 1014: First Step Implementation Act of 2021

Brookings Institution, The numbers for drug reform in Congress don’t add up (December 22, 2021)

Real Clear Politics, Recall, Remove & Replace Every Last Soros Prosecutor (December 20, 2021)

– Thomas L. Root

2021 So Far a Downer for Criminal Justice Reform – Update for December 23, 2021

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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.

THE YEAR BEGAN WITH SUCH HOPE, TOO…

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

fail200526As New York magazine put it last week, “The president is now facing a new political context. In the previous two years, cities across the United States have seen historically large spikes in multiple categories of crime, including homicides in many places… The sense that things are terrible — even if they are happening during a multi-decade downward trend in crime rates and have likely been exacerbated by a global pandemic — seems to be costing the president politically as well. The results of an ABC/Ipsos poll published on Monday showed that just 36% of Americans approve of Biden’s handling of crime, down from 43% in late October.

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

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

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

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

confusion200424To be sure, Biden’s plans were never well thought out. As Ralph Behr pointed out last week in the South Florida Criminal Defense Lawyer Blog, Biden’s campaign last year called for passage of the Safe Justice Act, a bill killed by the House in 2017. He also called for abolishing mandatory minimums, which would require amending hundreds of statutes, something that “would require bipartisan support for an issue that has historically proven controversial. This is unlikely to gain enough support even to be drafted. The more likely and admirable implementation would be to allow judicial discretion in sentencing below the minimum mandatory sentence.”

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

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

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

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

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

crackpowder160606On crack cocaine, Biden could push Senate Democrats to pass S.79, the EQUAL Act, which has already passed the House and has cleared the Senate Judiciary Committee. Last week, Sen. Susan Collins (R-Maine) because a co-sponsor.

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root