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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.”

marijuana-dc211104

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

Biden DOJ Flips, Says CARES Act People Can Stay Home – Update for December 22, 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.

HOME FOR THE HOLIDAYS

holidays211222Eleven months of uncertainty came to an abrupt and welcome end yesterday as Attorney General Merrick Garland announced that the Dept. of Justice’s Office of Legal Counsel had reversed its January 2021 opinion, concluding that inmates sent to home confinement under the CARES Act will not have to return to prison when the COVID-19 national pandemic emergency ends. 

The decision reversed the OLC’s swan song from the last days of the Trump Administration that

the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

Last July, things looked dire when the New York Times reported that the Biden DOJ had reviewed the OLC opinion and concluded that it was right. That was perhaps a trial balloon, because DOJ made no official announcement about any review. Nevertheless, the Times story unleashed a storm of criticism.

But yesterday, the Biden DOJ left a shiny gift under the tree for about 4,000 federal prisoners on home confinement. The new OLC memorandum begins

This Office concluded in January 2021 that, when the COVID-19 emergency ends, the Bureau of Prisons will be required to recall all prisoners placed in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act who are not otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). Having been asked to reconsider, we now conclude that section12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.

gift211222The New York Times said this morning that the OLC’s reversal “was a rare instance when the department under Attorney General Merrick B. Garland reversed a high-profile Trump-era decision. It was also a victory for criminal justice advocates.”

But not completely unexpected. During a Senate Judiciary Committee oversight hearing last October, Garland said, “It would be a terrible policy to return these people to prison after they have shown that they are able to live in home confinement without violations, and as a consequence, we are reviewing the OLC memorandum… [and] all about other authorities that Congress may have given us to permit us to keep people on home confinement.”

He promised Sen. Cory Booker (D-NJ) that “we’re not in a circumstance where anybody will be returned before we have completed that review and implemented any changes we need to make.” At that session, Committee Chairman Richard Durbin (D-IL) complained that he was “frustrated by DOJ’s handling of COVID and prison issues.”

Yesterday, Garland said in a statement, “Thousands of people on home confinement have reconnected with their families, have found gainful employment and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act. We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

A White House spokesman said in a statement that President Biden welcomed the change, noting “the relief it will mean for thousands of individuals on home confinement who have worked hard toward rehabilitation and are contributing to their communities.”

christmasunderpants211222Ohio State University law professor Doug Berman had an interesting observation about Garland’s statement in his Sentencing Law and Policy blog: “This statement by AG Garland suggests that DOJ is now going to engage in ‘rulemaking’ that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends. I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the “home confinement cohort” who may need to worry about eventually heading back to federal prison.”

For now, the impetus for prisoners to qualify for CARES Act placement, which can continue as long as the emergency lasts (and if omicron has anything to say about it, it will be awhile) will increase. CARES Act placement will rightly be seen as not just a furlough but as a bus ticket home. And we’ll just have to see whether a DOJ rulemaking wants to turn that shiny gift Biden left under the tree into a pair of underpants.

The New York Times, Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency (July 19, 2021)

The New York Times, Some Inmates Can Stay Confined at Home After Covid Emergency, Justice Dept. Says (December 22, 2021)

Sentencing Law and Policy, New OLC opinion memo concluding CARES Act “grants BOP discretion to permit prisoners in extended home confinement to remain there” (December 21, 2021)

DOJ, Statement by Attorney General Merrick B. Garland (December 21, 2021)

– Thomas L. Root

Clemency: No One Here But Us Turkeys – Update for December 13, 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.

CLEMENCY CRITICISM RISES AS CHRISTMAS APPROACHES

Business Insider noted last week that “at this point in his presidency, Joe Biden has pardoned just two sentient beings: Peanut Butter and Jelly, 40-pound turkeys from Jasper, Indiana.”

turkey211122Not that prior presidents have done much better. Trump, by contrast, had pardoned three at this point in his presidency: two turkeys and one former sheriff. Clinton, Obama, and George W. Bush all waited until at least their second year in office before granting clemency to a human being.

That’s not because Biden can’t find candidates. About 17,000 petitions are pending, 2,000 of which have been filed in the past year.

Last week, Kevin Ring of FAMM, Sakira Cook of the Leadership Conference on Civil and Human Rights, and others met with White House staff to turn up the pressure. The meeting appears to have been frustrating for Ring. During an NPR roundtable last week on criminal justice reform, he noted that Biden has thus far even resisted clemency for CARES Act detainees. “To me, it’s a bellwether,” Ring said. “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.”

NPR noted that the BOP population has increased by about 5,000 since Biden took office.

Progressives in the House of Representatives, unhappy with a clemency system they say is too slow and deferential to prosecutors, last week proposed the creation of an independent panel they hope would depoliticize and expedite pardons.

clemency170206The “FIX Clemency Act,” HR 6234, was introduced last Friday by Rep. Cori Bush (D-Missouri), Vice Chair of the House Judiciary Subcommittee on Crime, Rep. Ayanna Pressley (D-Mass), and Rep. Hakeem Jeffries (D-NY). The bill calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

That might work… if you could convince the President to appoint anyone to it. Last week, Law360 went after Biden for having yet to nominate anyone to the U.S. Sentencing Commission, which is “keeping a potentially key player in justice reform on the sidelines, according to legal experts.”

The article points out that the USSC “hasn’t had a full roster of seven commissioners for nearly half a decade and has lacked the minimum four commissioners needed to pass amendments to its advisory federal sentencing guidelines since the beginning of 2019.” As a result, an agency whose job is to evaluate the criminal justice system’s operations and potentially drive reform has been taken off the field, Law 360 quoted Ohio State University law professor and sentencing expert Doug Berman as saying.

noquorum191016The USSC currently has only one voting member, Senior U.S. District Judge Charles Breyer, who will have to leave next October, regardless of whether anyone has been named to the Commission or not.

During another NPR roundtable last week, NPR reporter Asma Khalid said of criminal justice reform, “You know, I cover the White House. And I will say, I don’t see this as really being an issue at the forefront, at least not from what I’ve heard publicly from them.”

The leadership vacuum is perhaps best reflected in rudderless Congressional action. Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the National Defense Authorization Act. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses, and was widely seen as opening the door to marijuana reform. Last Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

Many would say Biden has not enjoyed a legislative honeymoon, even while owning both houses of Congress. Maybe it’s only a legislative cease-fire, but whatever it is, the 11-month armistice is unlikely to hold for more than another year until Republicans retake at least one chamber. And with Americans’ perception that crime in their local area is getting worse surging over the past year, there will be less interest in criminal justice reform as the mid-terms approach.

Business Insider, Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated (December 8, 2021)

NPR, Criminal justice advocates are pressing the Biden administration for more action (December 9, 2021)

HR 6234, FIX Clemency Act (December 9, 2021)

Press Release, Bush, Pressley, Jeffries Unveil FIX Clemency Act (December 10, 2021)

Law360.com, Biden’s Inaction Keeps Justice Reform Group Sidelined (December 5, 2021)

NPR, No One Has Been Granted Clemency During Biden Administration (December 9, 2021)

Cannabis Wire, SAFE Banking Scrapped from NDAA Despite Major Push (December 8, 2021)

Gallup poll, Local Crime Deemed Worse This Year by Americans (November 10, 2021)

– Thomas L. Root

Biden Pardons Turkeys But No Prisoners – Update for November 22, 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.

BIDEN ISSUES FIRST PARDONS… NO HUMANS MAKE THE LIST

turkey211122There was no shortage of complaints from criminal justice reform advocates last Friday as President Biden “pardoned” two turkeys with the rather vegan names of “Peanut Butter” and “Jelly” in a White House ceremony.

“Peanut Butter and Jelly were selected based on their temperament, appearance, and, I suspect, vaccination status,” Biden said. “Yes, instead of getting basted, these two turkeys are getting boosted.”

But when a reporter asked whether he would be pardoning “any people in addition to turkeys,” Biden treated the question as a joke. “You need a pardon?” the president quipped. He didn’t reply to a follow-up question about marijuana prisoners as he walked away from assembled journalists.

turkeyb161123The turkeys may not get roasted, but the President isn’t so lucky. Law professor and clemency expert Mark Osler wrote in the Minneapolis Star-Tribune that “those of us who work in the field of clemency are left with a bitter taste in our mouths. Biden’s pardon of those turkeys represents the first time he has shown any interest at all in clemency. The problem isn’t just that Biden isn’t granting any clemency, it’s that he isn’t denying any, either. Following the lead of his predecessor, former President Donald Trump, Biden is just letting requests sit.”

Osler cited the 18,000 pending clemency petitions – 16,000 more than when Obama took office – and the danger CARES Act people may be sent back to prison when the pandemic ends, as “two genuine crises unfolding in federal clemency.”

A few days earlier, Interrogating Justice complained that

President Joe Biden campaigned heavily on justice reform, including with the federal Bureau of Prisons. He acted swiftly after his inauguration by terminating private prisons that housed federal inmates. However, since then, there has been virtually nothing. Various justice-reform groups have called out the president for his apparent lack of action. Points of frustration start with the increased population of federal prisons, the BOP’s inept handling of the pandemic, the failure to apply First Step Act time credits and most recently the question of granting clemency to all prisoners who are at home confinement under the CARES Act. And these are just a few of the many issues that plague the BOP.

turkeyprison161114The Minneapolis Post argued that “

While campaigning for president last year, however, Biden promised sweeping changes to the criminal justice system. And Biden could not have been more clear that he was committed to reform — promising, “as president” to “strengthen America’s commitment to justice and reform our criminal justice system. Then Biden got elected. And he’s been busy with other things…”

The Hill called it Biden’s “do-nothing” approach to clemency, which

he seems to have delegated entirely to the DOJ… Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades… So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

New York Times, Boosted, Not Basted: Biden Pardons 2 Turkeys in Thanksgiving Tradition (November 19, 2021)

New York Post, Biden laughs off question about clemency for humans before pardoning turkeys (November 19, 2021)

Minneapolis Star-Tribune, When it Comes to Human Pardons, Thanks for Nothing (November 19, 2021)

Interrogating Justice, The Biden Administration Has Gone Quiet on Justice Reform at the BOP (November 15, 2021)

Minneapolis Post, When will Biden make good on his promise to reform criminal justice? (November 15, 2021)

The Hill, Biden can’t let Trump’s DOJ legacy stifle reform (November 17, 2021)

 Thomas L. Root

A (Sentencing) Army of One – Update for November 16, 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.

JUDGE BREYER TELLS BIDEN HE’S LONELY ON THE SENTENCING COMMISSION

Senior District Judge Charles Breyer, who sits on the U.S. District Court for the Northern District of California, is the last man standing.

lastman211116The U.S. Sentencing Commission’s lone remaining member last Thursday called upon President Biden to act now to nominate enough new commissioners to put the Commission back in business so it can help implement the 2018 First Step Act.

“I would be surprised and dismayed if nominees are not sent to the Senate by the early part of next year,” Judge Breyer said in an interview with Reuters.

The U.S.S.C. lost its quorum after the December 2018 meeting, which ironically enough occurred just about a week before First Step was signed into law. Judge Breyer said the lack of quorum meant the Commission could not provide guidance on how to implement the law, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure compassionate release amid the COVID-19 pandemic.

noquorum191016“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 U.S.S.C. was powerless to fix things.

Judge Breyer said that was aware that nominees are currently being vetted. The White House had no immediate comment.

Ohio State University law professor Doug Berman has been beating the drums in his Sentencing Law and Policy blog to revitalize the USSC for several years. So far, no one – including the “criminal justice reform” President Biden – has listened.

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

Sentencing Law and Policy, Should I give up hoping Prez Biden will soon make long-needed nominations to US Sentencing Commission? (October 24, 2021)

– Thomas L. Root

POTUS Pot Pardons Possible, CRS Says – Update for November 9, 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.

COULD BIDEN USE BLANKET CLEMENCY ON POT OFFENDERS?

A Congressional Research Service report issued last week concluded that if President Joe Biden’s easiest path to fulfilling his goal of getting the federal government out of marijuana regulation business is to use his clemency power.

marijuana160818While the study concluded that Biden could not lawfully deschedule marijuana as a controlled substance, it nevertheless said the President has substantial control over how the law is enforced and may use his clemency authority at any time “after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: the President may also issue a general amnesty to a class of people.”

In addition, the Report notes, “the President could direct the Department of Justice to exercise its discretion not to prosecute some or all marijuana-related offenses. Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed’.”

The CRS is Congress’s public policy research institute, working primarily for members of Congress and their committees and staff on a nonpartisan basis.

Meanwhile, an article in Inquest last week observed that “there is deeply rooted legal precedent for presidents to use their authority to grant clemency to large classes of people. Presidents have deployed this authority to advance the public welfare, whether following a war or in response to unjust punishments, or simply to help heal a nation torn by crisis… Broad clemency has been issued by presidents George Washington, John Adams, James Madison, Abraham Lincoln, Theodore and Franklin Delano Roosevelt, Harry Truman, Lyndon B. Johnson, Gerald Ford, and Jimmy Carter.”

A lot of people are hoping to see this on the news...
A lot of people are hoping to see this on the news…

Noting that “the federal system… is the single largest incarcerator in the nation,” the article argued “ President Biden can lead by example, embracing categorical clemency as a tool to mitigate the system’s structural injustices… The president can act by issuing categorical clemency through a proclamation to a class of people based on two categories of eligibility: Personal characteristics or membership in a certain group, or shared circumstances. Such a proclamation should contain a presumption that all people who fit the criteria announced by the president will have their sentences commuted unless the DOJ can prove an articulable and current threat of violent harm.”

Of course, all of the foregoing supposes the President will use his clemency power at all. The Administration has thus far said not to expect pardons or commutations prior to late next year.

Congressional Research Service, Does the President Have the Power to Legalize Marijuana? (November 4, 2021)

Inquest, Mass Clemency (November 2, 2021)

– Thomas L. Root

You Know, Joe, You Could Be Doing A Lot More… – Update for October 28, 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.

WHO YOU GONNA BELIEVE, JOE BIDEN OR YOUR OWN EYES?

whoyabelieve201214President Joe Biden’s Administration has said all the right things about criminal justice reform, making its inaction or, worse, contrary actions on significant initiatives in Congress (or even in the President’s own Dept. of Justice) frustrating and baffling. So do we believe what we hear or what we see?

But then, the guy so far can’t get his signature infrastructure bill through his own party’s caucus. Maybe I am expecting too much from the septuagenarian chief executive.

Still, what Biden himself could be doing without Congress is addressing the 4,000 inmates on CARES Act home confinement. Those people, according to both Trump’s and Biden’s Dept of Justice, will have to return to prison when the national pandemic emergency ends, which could be as soon as early next year. Recently, 28 House Democrats became the latest to urge Biden to “immediately commute the sentences” of the CARES Act home confinees. The lawmakers also urged the creation of an independent board to review a massive backlog of more than 15,000 petitions seeking clemency.

“Nearly all of those released have thrived since returning home by reconnecting with their families and communities, and by engaging actively in civic life,” David Trone (D-MD) and his colleagues wrote to the president. “Mr. President, with a stroke of your pen you could remove the threat of reincarceration that looms over thousands of people who have already demonstrated their commitment to being productive members of their communities.”

Last week, Kara Gotsch, deputy director at the Sentencing Project, a Washington-based nonprofit focused on injustices in the criminal justice system, said the DOJ’s opinion is “devastating” for those who are staying at home and now face the possibility of being sent back to federal prison. “It is really a shame that the White House and DOJ appear to be standing by that memo issued by the Trump administration,” she said.

The Capital News Service reported Gotsch has been in communication with the Biden administration, asking for grants of clemency for everybody who’s been serving sentences in home confinement, but the White House is considering granting it to only some.

“I think that’s a step in the right direction, but there’s no reason why anyone who has proven themselves to be successful on the home confinement program should be sent back,” she added.

warondrugs211028If the Administration is so concerned about racial disparity, it might urge the Senate to take up the EQUAL Act (S.79). According to the Sentencing Commission, no class of drug is as racially skewed as crack: 79% of sentenced crack offenders in 2009 were black, versus 10% white and 10% Hispanic. Combined with a 115-month average imprisonment for crack offenses versus 87 months for powder offenses, this makes for more African-Americans spending more time in the prison system.

Instead, Biden is pushing a proposal that would enhance sentences for certain synthetic opioids related to fentanyl. A coalition of nearly 100 civil rights and criminal justice reform groups last week warned that the plan will exacerbate racial disparities.

“Since the inception of the war on drugs, African Americans and Latino people have borne the brunt of enforcement-first approaches,” Sakira Cook of the Leadership Conference on Civil and Human Rights, said. She argued that about 70% of defendants charged with fentanyl-related crimes have been minorities.

The Biden Administration defends the initiative as needed to stop the overdose epidemic.

Last week Kristen Clarke, the DOJ’s civil rights chief, highlighted the racial disparities in state juvenile detention systems. “Nationally, black children are over four times more likely to be incarcerated than white children,” Clarke said. “And the disparity is even greater in Texas, where Black children are over five times more likely to be incarcerated.”

Apparently, racial disparities are only important when the states cause them.

NPR, A proposed Biden drug policy could widen racial disparities, civil rights groups warn (October 20, 2021)

Drug Policy Alliance, Letter to Congress (October 22, 2021)

CNN, ‘Big, big shifts’: How Biden’s civil rights pros have reoriented the Justice Department (October 20, 2021)

Southern Maryland Chronicle, Democrats in Congress press Biden to extend COVID-related prisoner releases (October 19, 2021)

– Thomas L. Root