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Peters May Be The One – Update for March 5, 2024

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

PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root

President Vows to Block GOP Plan to Lock Up People Remaining on CARES Act Home Confinement – Update for December 1, 2023

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

BIDEN THREATENS VETO OF BLACKBURN EFFORT TO CANCEL CARES ACT HOME CONFINEMENT

return161227The White House has threatened to veto a Republican-sponsored Senate resolution that would send about 3,000 federal offenders who were released to home confinement during the COVID-19 pandemic back to prison.

NPR reported yesterday that as early as next week, the Senate could vote on S.J.Res. 47, sponsored by Sen. Marsha Blackburn (R-TN) and more than two dozen other Republican senators. The resolution would negate Dept. of Justice rules that permit over 3,000 federal prisoners sent to home confinement during the COVID pandemic by the CARES Act to complete their sentences at home absent misbehavior.

The resolution is brought under the Congressional Review Act, legislation passed 27 years ago to create a process for Congress to overturn federal agency rules.

Blackburn’s office told NPR that “the COVID national emergency is over, and criminals need to be behind bars, not on the streets.” NPR reported that DOJ says only 27 of the 13,000 prisoners released to extended home confinement during COVID were rearrested or returned to prison custody for committing a new crime.” Blackburn’s office alleges that some of those 27 people “face charges for assault, drugs and human smuggling,” according to NPR, “but analysts who follow the criminal justice system say the people released during the pandemic have a very low recidivism rate – less than 1%, much smaller than the rate for all federal prisoners, according to government statistics.”

Writing three weeks ago in The Hill, Sarah Anderson of the R Street Institute noted that CARES Act home confinement recidivism “is a less than 0.2 percent recidivism rate, which is less than 1/200th of the federal government’s overall self-reported recidivism rate of 43 percent. Put differently, a staggering 99.8 percent of those sent to home confinement under the CARES Act succeeded in establishing and maintaining law-abiding lives outside of federal brick-and-mortar custody. Advocates of public safety and the rule of law should count that as a bonafide win.”

veto231201In a statement of administration policy released Wednesday, the Office of Management and Budget said flatly that President Biden will veto S.J.Res. 47 if it makes it to his desk. OMB cited the extraordinarily low recidivism rate among those released to home confinement and the reduced cost to taxpayers compared to incarceration:

Of the over 13,000 people released to home confinement under the CARES Act, less than one percent have committed a new offense—mostly for nonviolent, low-level offenses—and all were returned to prison as a result. Moreover, since home confinement is less than half the cost of housing someone in prison, this program has saved taxpayers millions of dollars and eased the burden on [Federal Bureau of Prisons] staff so they can focus on the higher risk and higher need people in Federal prison.

Daniel Landsman, Vice President of Policy for FAMM, said, “Our federal prison system is approaching crisis level with understaffing and its ability to properly care for and keep safe both the people who live and the people who work in their facilities… [T]he thought of adding, in one fell swoop, 3,000 or so people back into the population when we’re already struggling to adequately staff and keep people safe just doesn’t make sense to me.”

recividists160314Sen. Cory Booker (D-NJ) issued a policy brief last June that declared “CARES Act home confinement has been a resounding success in safely reintegrating individuals into the community without compromising public safety.”

The effect of a Biden veto would probably be to kill S.J.Res. 47. With the Democrats controlling the Senate and the Republicans having a razor-thin majority in the House, the likelihood of both chambers to rustle up a two-thirds majority to override a Biden veto is extremely remote.

S.J.Res. 47, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Justice relating to Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (October 30, 2023)

Reason, Biden Threatens To Block GOP Plan To Send 3,000 People Back to Federal Prison (November 30, 2023)

Reason, 11,000 Federal Inmates Were Sent Home During the Pandemic. Only 17 Were Arrested for New Crimes (August 22, 2022)

Dept of Justice, Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)

Office of Management and Budget, Statement of Administration Policy: S.J. Res. 47 – A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Justice relating to “Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act” (November 30, 2023)

Sen Cory Booker (D-NJ), CARES Act Home Confinement – Three Years Later (June 23, 2023)

The Hill, The Senate should codify — not reject— CARES Act’s home confinement policy (November 9, 2023)

NPR, Hundreds released from prison during pandemic may be sent back under Senate proposal (November 30, 2023)

– Thomas L. Root

Ending the Summer With the Rocket’s Red Glare – Update for September 29, 2023

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rocket190620This weekend marks the end of summer, maybe not astronomically or meteorologically, but Monday the Supreme Court begins its next term, called “October Term 2023.”  Fall is here, but first, we’re going to end the summer with a short rocket:

DOES NOT COMPUTE

The BOP announced in late 2022 that it was developing a calculator to project the maximum number of earned-time credits – now being called FSA credits – a prisoner could earn at the outset of a sentence. That way, a prisoner would know upfront his or her projected release date and the date that halfway house or home confinement could begin.

notcompute230929You may have been skeptical, recalling that in 2022, the BOP promised monthly auto-calculation of FSA credits (with more launch dates than North Korea’s missile program) that never happened, either. August became September became October, then November, and finally January. Writing in Forbes magazine last week, Walter Pavlo reported that the BOP has likewise been unable to determine likely dates for prerelease custody, depriving inmates of benefits of FSA credits to which they are entitled by law because the BOP is unable to scramble to arrange halfway house or get residence approval for home confinement.

What’s worse, Pavlo reported, “there is no date for when this calculation issue will be addressed. Until then, prisoners continue to line up outside of their case manager’s office to plead their case that their release date is closer than what the BOP is calculating. As one prisoner told me, ‘My case manager said, ‘the computer tells your release date and it could be tomorrow, or next week, or next year, it does not matter to me. But I don’t have the ability to make that decision myself’.”

The BOP Office of Public Affairs told Pavlo that “credits cannot be applied to an individual’s projected release date until they are actually ‘earned.’ Further, as an individual can earn 15 days of time credits, and as there is no partial or prorated credit, it is feasible that earned credits could be greater than the number of days remaining to serve. However, the earned time credits are ‘in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment.’ Simply stated,” Pavlo said, “the credits are earned, and they cannot exceed the remaining time to serve at the point they are earned.”

bureaucracybopspeed230501The BOP’s position, according to Pavlo, is that “ordinarily, the applicability of time credits towards pre-release custody will be limited to time credits earned as of the date of the request for community placement. However, in an effort to ensure eligible adults in custody receive the maximum benefit, the agency is developing additional auto-calculation applications that will calculate a “Conditional FSA Release Date” and an “Earliest Conditional Pre-Release Date” which would include the maximum FTC benefit.”

Basically, the BOP is still trying to figure out how to implement a First Step program it knew about 5 years ago.

Forbes, Bureau of Prisons’ Challenges With First Step Act Release Dates (September 17, 2023)

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SCHUMER MAY ADD CRIMINAL JUSTICE PROVISIONS TO NEWLY-REFERRED MARIJUANA BILL

Fresh from getting the Senate Senate Majority Leader Charles Schumer (D-NY) indicated yesterday that he may attach criminal justice reform language to the cannabis banking bill that just passed the Senate Banking Committee on Wednesday.

Speaking on the Senate floor, he said he was “really proud of the bipartisan deal we produced,” a reference to the Secure and Fair Enforcement Regulation Banking (SAFER) Act, S.1323. And while the legislation will be brought to a full Senate vote “soon,” Schumer promised to include “very significant criminal justice provisions” in it, Marijuana Moment reported.

Schumer didn’t say what those reforms might be noting he would “talk more about that at a later time.”

marijuana-dc211104“Attaching any additional provisions – let alone ones on criminal justice — could imperil SAFER‘s chances of winning Senate approval, according to the finance website Seeking Alpha. “Prior attempts to add criminal justice language into marijuana-related legislation has led to controversy.”

In May, Schumer said a marijuana banking bill would have social justice reforms and criminal expungement language attached. And in 2022, Sen. Cory Booker (D-NJ) said he would favor a “SAFE Banking Plus” bill that includes criminal justice reforms.

Marijuana Moment, Schumer Touts Bipartisan ‘Momentum’ Behind Marijuana Banking Bill That He Plans To Bring To The Floor ‘Soon’ With More ‘Criminal Justice Provisions’ (September 28, 2023)

Seeking Alpha, Schumer indicates he may tie in criminal justice to marijuana banking bill (September 28, 2023)
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$117 A DAY WON’T BUY YOU PERFORMANCE

Maybe that’s all the performance you can expect for $117 a day. That’s what the BOP said last week is the current average cost of incarceration based on fiscal year 2022 data. The average annual COIF for a Federal inmate housed in a halfway house for FY 2022 was $39,197 ($107.39 per day).

BOP, Annual Determination of Average Cost of Incarceration Fee (COIF), 88 FR 65405 (September 22, 2023)
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HAZELTON BOP UNION SAYS EMPLOYMENT STANDARDS HOBBLE STAFFING AS SHUTDOWN LOOMS

Picket signs waved all day long last Friday as members of the FCC Hazelton local 420 union representing the prison say the staffing shortage has gotten so bad officers have to work 16-hour shifts 4 to 5 days a week, with stringent employment standards partly to blame.

Union President Justin Tarovisky says the prison is currently short-staffed by more than 80 corrections officers. He complained that the union held a recruiting event where they took in 60 applicants, but the BOP office in Grand Prairie, Texas, that oversees these applications has been disqualifying applicants for superficial reasons.

hazeltonpicket230929“A lot of that common sense hiring has left this agency,” Tarovisky told WDTV, a Weston, WV, television station. “They’re handcuffing these applicants that are applying and disqualifying them for simple errors and it’s not our staff that’s disqualifying them, we can’t even get them in the door to interview them because they’re being disqualified by people halfway across the country.”

There have been only 10 new staff hired at Hazelton this year despite the desperate need with some other prison staff members having to take on the duties of corrections officers. Tarovisky says the prison needs to be able to hire applicants directly to keep officers and community members safe.

The grueling hours are taking a toll on prison staff wellbeing and many are feeling the impact at home. A Dept of Justice Office of Justice Programs report in 2020 found that the suicide rate of corrections officers is seven times higher than the national average.

From the “You Think Things Are Bad Now” department: ABC News reports that all 34,537 BOP employees would still have to go to work if the government closes for lack of funding on Sunday, leaving them without a paycheck during the period of the shutdown.

“A shutdown is absolutely devastating for our members,” Brandy Moore-White, the president of CPL-33, told ABC News. “Not only do our members put their lives on the line every single day to protect America from the individuals incarcerated, but now they’re having to go out… and figure out how they’re going to pay their bills and how they’re going to feed their families.”

All government employees are guaranteed pay during the time of the shutdown, but that money is not paid until after the shutdown ends. If you’re living paycheck to paycheck, the promise of money next week does not buy you groceries today.

WDTV, Hazelton Prison corrections officers protesting hiring practices (September 22, 2023)

ABC News, Government shutdown would be ‘devastating’ for Bureau of Prisons employees (September 27, 2023)

– Thomas L. Root

Blue Christmas for Criminal Justice Reform – Update for December 27, 2022

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SENTENCE REFORM DIES WITH 117TH CONGRESS

Sentencing reform is dead for another two years.

bluechristmas221227Of all the criminal justice reform bills in Congress – the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), the COVID-19 Safer Detention Act (S.312), the Prohibiting Punishment of Acquitted Conduct Act (S.601), the EQUAL Act (S.79) and the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – exactly none made it past the Senate during the two-year Congress that ends in a week. Zero. Zip. Bupkis.
With both the House nor Senate closed for a Christmas-Passover-Kwanzaa-New Year’s vacation until next Tuesday, the 117th Congress is done. It’s the legislative equivalent to taking a knee in the final minute of a football game. The clock’s running out.

runoutclock221227It was clear last summer that the First Step Implementation Act, the Smarter Sentencing Act, the COVID-19 Safer Detention Act (and the Prohibiting Punishment of Acquitted Conduct Act were going nowhere. But some marijuana and cocaine reform – even though it was not quite what was in the MORE Act and EQUAL Act that passed the House – looked likely as late as last week. However, despite bipartisan support for both bills, Senate Republicans shot them down, but with plenty of help from Senate Democrats and the Biden Administration.

As for marijuana, the Senate’s failure to act comes as a repudiation of Biden’s efforts for pot reform. In October, the president pardoned thousands of people convicted of simple marijuana possession (although no one pardoned was in federal prison) and said his administration would review how the drug is categorized.

The MORE Act would have allowed cannabis companies to open bank accounts and would have retroactively permitted changes in pot-based sentences. But efforts were severely hobbled last fall when Senate Majority Charles Schumer (D-NY), Sen Cory Booker (D-NJ) and Sen Ron Wyden (D-OR) introduced their own version of weed reform, the Cannabis Administration and Opportunity Act (S.4591).

Either MORE or CAOA would have been good for prisoners, but Democratic leadership’s push of an alternative bill diluted the groundswell of support needed to get MORE passed. By last week, the only hope was for banking reform – nothing for federal prisoners – but even that was exempted from last week’s giant end-of-year spending bill, the last chance it had for passage.

congressgradecard221227If anything, the EQUAL Act’s failure was a bigger disappointment. Aimed at reducing the disparity in sentencing for crack versus powder cocaine offenses by making crack and powder sentences the same, it would have benefitted thousands of prisoners with retroactive relief. EQUAL passed the House with bipartisan support and had what seemed to be a veto-proof majority of 50 Democrat supporters and 11 Republican Senate co-sponsors.

Then, Sen Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee and introduced his SMART Cocaine Sentencing Act (S. 4116), which watered down EQUAL and put retroactivity in the hands of the Dept of Justice.

Still, EQUAL had a chance until Sen Tom Cotton (R–AR) single-handedly stopped the Senate from considering the bill last Wednesday. EQUAL, like the marijuana-friendly SAFE Banking Act was proposed as an addition to the catch-all spending package, an effort that Cotton frustrated.

Sen. Booker then sought unanimous consent to release the stand-alone version of the EQUAL Act from the Senate Judiciary Committee. Sen. Cotton, a hardline prohibitionist described by Beforeitsnews.com as someone “who has never met a drug penalty he thought was too severe,” objected. Sen. Booker’s “hail Mary” fell short.

Still, it appeared up until a week ago that some crack cocaine relief would be jammed into the giant end-of-year spending bill. Reuters reported a week ago that Senate negotiators had reached a potential compromise.

timing221227But then, Attorney General Merrick Garland picked the middle of the negotiations to issue a memo directing federal prosecutors to “promote the equivalent treatment of crack and powder cocaine offenses” in two ways. If they decide that a mandatory minimum should be charged, they should “charge the pertinent statutory quantities that apply to powder cocaine offenses.” And at sentencing, “prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine.”

Grassley was enraged, blasting the Garland memo as demanding that “prosecutors ignore the text and spirit of federal statutes [and] undermining legislative efforts to address this sentencing disparity.” And just like that, when the text of the 4,000-page, $1.7 trillion spending bill was released, the watered-down EQUAL Act was nowhere to be found.

“It is a searing indictment of a broken Beltway when a bill that passed the House with an overwhelming bipartisan vote, endorsed by law enforcement and civil rights leaders alike, with 11 Republican co-sponsors and filibuster-proof majority support in the Senate, and an agreement between the relevant committee Chairman and Ranking Member for inclusion in the end-of-year package, fails to make it to the President’s desk,” Holly Harris, president and executive director of the Justice Action Network, said. “The American people deserve better.”

FAMM vice president Molly Gill wants to see the EQUAL Act reintroduced next session. The politics are hard to predict: Democrats have one more seat in the Senate, while Republicans will take narrow control of the House.

The fact that a large number of House Republicans joined Democrats in passing the EQUAL Act last year is not reassuring: the trick will be getting a Republican speaker – who controls what comes up for a vote – put the bill in front of the chamber.

Any bill now pending in the House or Senate that has not passed will disappear on Jan 3, when the new 2-year Congress – the 118th – convenes. And we will start all over again, but with a much unfriendlier House of Representatives.

New Republic: Three Incredibly Popular Things That Congress Chose to Leave Out of the Spending Bill (December 20, 2022)

Reason, Congress Yet Again Fails To Pass Crack Cocaine Sentencing Reforms (December 20, 2022)

Marijuana Moment, Schumer’s “last ditch” cannabis banking push (December 19, 2022)

Reason, Merrick Garland’s New Charging Policy Aims To Ameliorate the Damage His Boss Did As a Drug Warrior (December 19, 2022)

Beforeitsnews.com, The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction (December 22, 2022)

Filter, The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity (December 21, 2022)

– Thomas L. Root

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Criminal Justice Reform Efforts Die In 117th Congress With a Whimper – Update for December 20, 2022

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SENATE CRACK COMPROMISE AND POT REFORM ARE DEAD

As of last Thursday, negotiators in the Senate had reportedly reached a tentative deal to narrow sentencing disparities between crack and powder cocaine from 18:1 to 2.5:1. Then, enter Merrick Garland…

congressbroken220330First, the compromise: Reuters reported that its sources said senators planned to tuck the measure into a bill funding the government. Under the deal reached, the crack/powder weight disparity would be narrowed to 2.5 to 1, but the change would not be retroactive. The Senate would attach the change to a year-end spending bill, which has been delayed for another week.

The compromise is the death knell for the EQUAL Act (S.79), which would have made crack and powder equal in sentence severity and would have been retroactive. EQUAL, which passed the House last year, has been in trouble in the Senate since Sen. Charles Grassley (R-IA), the highest-ranking Republican on the Judiciary Committee, introduced the SMART Cocaine Sentencing Act (S.4116), which embodied the 2.5-to-1 ratio. proportion instead.

Then, the Dept of Justice: The compromise was shaky even before the DOJ announced relaxed crack charging policies last Friday. Those changes angered Sen. Grassley, who warned that “it undermines legislative efforts to address this sentencing disparity.” Yesterday, the compromise seems to have gone to hell.

Two sources told Reuters yesterday that even the 2.5:1 negotiations have stalled. After Friday’s DOJ announcement, Senate Minority Leader Mitch McConnell (R-KY) joined Sen. Grassley in opposing the compromise. One source told Reuters that last-minute negotiations to tuck the measure into the year-end spending bill continued yesterday morning, but “inclusion was no longer seen as likely.”

nochance221220At this point, neither the EQUAL Act nor retroactivity nor even the watered-down SMART Cocaine Sentencing Act has any chance to pass in this Congress. Why the Attorney General had to choose Friday to stick his thumb in Chuck Grassley’s eye is anyone’s guess.

Marijuana reform this year is equally dead. Last Thursday, Sen Sherrod Brown (D-OH), who chairs the Senate Banking Committee, signaled that marijuana reform might be on hold until the next Congress in 2023. The modest changes being considered now do not address any criminal justice reform. Brown told Marijuana Moment he is interested in the “expanded SAFE Plus bill that Senate leadership has been finalizing because it’s expected to go beyond simple banking reform and also contain other provisions dealing with expungements and more.”

Today, Marijuana Moment reported:

Congressional staffers confirmed to Marijuana Moment that cannabis banking language is not being included in the omnibus appropriations bill despite a final push by Senate Majority Leader Chuck Schumer (D-NY) and other supporters from both parties. Advocates will now look ahead to 2023 and the possibility of advancing the cannabis reform in a divided Congress.

marijuana220412Sen Cory Booker, (D-NJ) said last week that Sen. McConnell is standing in the way of the lame-duck Congress passing any marijuana-related bills before the end of the year. NJ Advance Media reports that McConnell’s opposition to any marijuana bill “is giving Senate Republicans who support the measure cold feet, said Booker, who is helping to lead the effort to enact legislation before Republicans take control of the House in January and most likely prevent any bill from passing in the next two years.”

Congress is not completely impotent when it comes to prison and criminal justice reform. Last Wednesday, the House passed The Prison Camera Reform Act (S.2899) – approved by the Senate last year – and sent it to President Biden for signature. The bill requires the Bureau of Prisons to fix broken surveillance cameras and install new ones, “providing upgraded tools to fight and investigate staff misconduct, inmate violence and other problems,” according to industry publication Corrections1.

Reuters, U.S. Senate set to address cocaine sentencing disparity in funding bill (December 15, 2022)

Reuters, U.S. Senate Talks on Cocaine Sentencing Reform Hit Roadblock (December 19, 2022)

SMART Cocaine Sentencing Act (S.4116)

Marijuana Moment, Key Senate Chairman Signals Marijuana Banking Will Wait Until 2023, Says There’s ‘Interest In The Republican House’ (December 15, 2022)

Marijuana Moment, Cannabis banking left out of omnibus (Newsletter: December 20, 2022)

NJ.com, Mitch McConnell is blocking all marijuana legislation in Congress, N.J.’s Booker says (December 15, 2022)

Prison Camera Reform Act of 2021 (S.2899)

Corrections1, Congress passes Prison Camera Reform Act (December 16, 2022)

– Thomas L. Root

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DOJ Uses Guidance Memos to Try to Effect Crack Cocaine Reform – Update for December 19, 2022

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CRACK REFORM COMETH… BUT IT’S TEMPORARY AND DOESN’T HELP ANYONE ALREADY LOCKED UP

Attorney General Merrick Garland has instructed federal prosecutors to end disparities in the way they charge offenses involving crack cocaine and powder cocaine.

crackpowder160606The change, outlined in two internal memos released by the Dept of Justice on Friday, is a “win for criminal justice reform advocates, who point out that the current sentencing regime has led to the disproportionate incarceration of Black Americans since the policy was adopted nearly 40 years ago,” Reuters said.

The new policy will take effect within 30 days. It does not apply retroactively. This means anyone sentenced under the harsher 18;1 ratio has no way to have his or her sentence adjusted to reflect what Congress now believes is fair.

The memos argue that “the crack/powder disparity in sentencing has no basis in science, furthers no law enforcement purposes, and drives unwarranted racial disparities in our criminal justice system.” Garland instructed prosecutors to treat “crack cocaine defendants no differently than for defendants in powder cocaine cases” when charging defendants and making sentencing recommendations.

They also instruct prosecutors to reserve charges involving mandatory minimums to situations with certain aggravating factors, such as leadership, possession of a gun, gang membership, or a history of violence.

“Today’s announcement recognizes this injustice and takes steps to finally strike parity between powder and crack cocaine sentences,” Sen Cory Booker (D-NJ), a sponsor of the EQUAL Act (S.79), said in a statement.

grassley180604But Sen. Charles Grassley (R-IA), whose SMART Cocaine Sentencing Act (S.4116) – introduced last summer – is responsible for derailing the EQUAL Act, was displeased. “A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill,” Grassley said in a statement. “That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands. The administration could have engaged in the real and lasting legislative process, but opted for flimsy guidance that will disintegrate when this administration leaves office.”

Although Garland’s new charging policy has no retroactive effect, Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that “federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.”

Reuters, U.S. Justice Department moves to eliminate cocaine sentencing disparity (December 16, 2022)

Washington Post, Garland moves to end disparities in crack cocaine sentencing (December 17, 2022)

Dept of Justice, General Department Policies Regarding Charging, Pleas, and Sentencing (December 16, 2022)

Dept of Justice, Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases (December 16, 2022)

BBC, US to end crack and powder cocaine sentencing disparity (December 16, 2022)

Press Release, Grassley Statement On Justice Department’s Usurpation Of Legislative Authority, Disregard For Statutes As Written On Cocaine Prosecutions (December 16, 2022)

Sentencing Law and Policy, US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine (December 16, 2022)

– Thomas L. Root

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The Last Chapter for EQUAL Act Gets Written This Week – Update for December 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.

THIS WEEK MAY BE EQUAL ACT’S LAST STAND

noteasycongress221212Politico, a website covering Capitol Hill goings-on, reported last week that efforts to attach the EQUAL Act (S.79) – a bill that would make crack and powder cocaine the same for sentencing, to the National Defense Authorization Act (H.R.8900) – are “no longer expected.”

However, Senate Judiciary Committee chairman Richard Durbin (D-IL) confirmed to Bloomberg that Democrats are still considering attaching the bill to the NDAA, which Congress must approve every year to fund the military. If attaching EQUAL to NDAA fails, the Senate might instead attach it to a package of spending bills to fund the federal government that must pass by this Friday.

Taylor Foy, a spokesperson for Grassley, told Bloomberg that it appears unlikely that a deal will be reached to include a measure on cocaine sentencing in the NDAA, but there might be an opportunity to include the provision in the upcoming government funding package.

Sen Cory Booker (D-NJ), one of the EQUAL Act’s sponsors, admitted, “we’re in a tough negotiation moment right now. I just want to make sure that I focus on doing what I can to get something over the line, as opposed to talking about strategy.”

EQUALgone221212Time is short, with only a few weeks until this congressional session ends on January 3. When the session ends, all unpassed bills – including EQUAL – will disappear.

Although EQUAL passed the House overwhelmingly last summer, it stalled in the Senate as Sen Charles Grassley (R-IA) proposed the SMART Cocaine Sentencing Act (S.4116), an alternative that would maintain a 2.5:1 ratio of crack to powder, and put all retroactivity decisions in the hands of the Dept of Justice. Current talks seem to be adopting Grassley’s 2.5:1 ratio. Senate Democrats have rejected Grassley’s proposal that DOJ should be the sole authority to decide which prisoners should have EQUAL’s benefits applied to their sentences retroactively. As a result, Politico reports, “negotiators are now discussing removing retroactivity altogether, according to a Democratic aide.”

FAMM President Kevin Ring said it would be “immoral to pass a bill that did not provide relief to those whose sentences were so bad that it convinced Congress to change the law.” Holly Harris, president of the Justice Action Network, said, “The thought that this would die at the last minute in a procedural machination in the Senate is unconscionable to me. The obituary on this bill would be the greatest indictment of Washington that you have ever read.”

lameduck221114Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman said, “Given that the House so overwhelming passed the EQUAL Act last year, I want to believe there is a chance for some kind of reforms in the next Congress even with the GOP in control of the House. But that might be crazy talk, so maybe this lame-duck period is the last best chance for crack sentencing reform. But at this late date, I am certainly not optimistic.”

Politico, Cocaine sentencing reform hits ‘tough negotiation moment (December 6, 2022)

National Defense Authorization Act (H.R. 8900)

EQUAL Act (S.79)

SMART Cocaine Sentencing Act (S.4116)

Bloomberg, Senators Seek Deal to End Cocaine Sentencing Disparity Before Year-End (December 6, 2022)

Sentencing Law and Policy, Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act (December 6, 2022)

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

A Tale of Two Bills (Part 2 – Up in Smoke) – Update for April 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.

… MARIJUANA REFORM IS SUFFERING FROM TOO MUCH INTEREST

Politico was just one of several news outlets last week admitting that the MORE Act – far-reaching marijuana legalization bill passed two weeks ago by the House – still has “no real path to President Joe Biden’s desk.”

MORE’s passage marks the second time in less than two years that the House passed legislation to decriminalize pot, but the Democrats have “passed a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.”

senatemarijuana220412“You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep Nancy Mace (R-SC), who introduced a bill last year that decriminalizes marijuana and expunges some records but does not create federal grant programs. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”

Ironically, Republican complaints about MORE relate to federal funding of pot programs. No one is critical of the expungement and retroactive sentencing reforms.

The Senate — where Senate Majority Leader Chuck Schumer (D-NY), Sen. Cory Booker (D-NJ) and Sen. Ron Wyden (D-OR), are working on the Cannabis Administration and Opportunity Act — is even tougher ground for weed.

Booker and Schumer have refused to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform. But Democrats’ pursuit of a perfect comprehensive pot bill worries some lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress next year, the window for federal cannabis policy port reform may not be open much longer.

MORE faces significant hurdles in the Senate. First, not all Democrats are in favor of marijuana legalization; conservative Democrats, represented by a few senators such as Sen Joseph Manchin (WV), stand in the way of reform. In order to pass the Senate, the bill needs to secure 60 votes to be safe from a Republican filibuster. Because not all Democrats are expected to vote in favor of the MORE Act, ensuring its success would require more than 10 Republicans voting in favor of it.

marijuana220412But the future of marijuana legalization does not rely solely on the success of the MORE Act. Schumer intends to introduce  CAOA later this month. If CAOA gets a vote in the Senate, it will be the first time in 50 years that the Senate voted on cannabis reform. The downside, according to the National Law Review, is that “the competing interests of these two bills could create an unnecessary deadlock, potentially leaving the cannabis industry with another year of failed reforms.”

MORE Act (H.R. 3617)

Politico, House passes marijuana legalization bill (again), but with no clear path forward (April 1, 2022)

Shepherd’s, Marijuana Legalization Act Passes the House, Likely to Die in the Senate (April 7, 2022)

National Law Review, The House Does It Again: MORE Act Ready for Senate Action (April 4, 2022)

Cannabis Administration and Opportunity Act (not yet introduced)

– Thomas L. Root

EQUAL Act Now Has Path To Passage – Update for March 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.

EQUAL ACT AND MORE ACT MOVING FORWARD IN CONGRESS

It now looks like the EQUAL ACT (S.79), a bill to equalize crack and powder sentences, may have a ready path to passage.

crackpowder160606Last week, Senate Majority Leader Chuck Schumer (D-NY) signed onto the bill as a co-sponsor, although his plans to bring the bill to a floor vote are still not clear. The bill passed the House, 361-66, in September and President Joe Biden, who campaigned on criminal justice reform, is expected to sign the measure when it reaches his desk.

Ten Senate Republicans, including Sen. Richard Burr (R-NC), who added his name last week, are co-sponsoring the bill, that would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine. This paves the way for likely passage in the evenly divided Senate chamber, where 60 votes are required to pass most legislation.

It now “looks like you’d get to 60, really,” said Sen. Rand Paul (R-KY), one of the ten GOP EQUAL Act sponsors. “This is the Democrats’ prerogative, it’d be nice if they would bring it to the floor.”

The bill, primarily sponsored by Judiciary Chairman Richard Durbin (D-IL) and Sen. Cory Booker (D-NJ), lowers the punishment for crack cocaine to match the thresholds for powder cocaine. In 2020, the Sentencing Commission found that 77% of crack cocaine trafficking offenders were black and 6% were white. Yet whites are more likely to use cocaine in their lifetime than any other group, according to the 2020 survey. Current law sets an 18-to-1 ratio between crack and powder cocaine, meaning anyone found with 28 grams of crack cocaine would face the same five-year mandatory prison sentence as a person found with 500 grams of powder cocaine.

crack211102Sentencing disparities between crack and powder cocaine were originally created with a 100-to-1 ratio, but in 2010, Congress reduced the sentencing disparity to 18-to-1 in the Fair Sentencing Act, but advocates have fought to further narrow the sentencing gap.

EQUAL is likely to get a vote in the Senate before the midterms given the support of Schumer and the 10 GOP lawmakers, according to the Washington Times. The GOP support means the legislation is able to overcome a filibuster, provided all 50 Senate Democrats unite behind the effort. Sen. Joe Manchin (D-WV), who has been a maverick so far in this Session, also became a cosponsor last week.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that it now seems the EQUAL Act “may have a ready path to passage.”

If enacted, the EQUAL Act would not only level federal sentences for future crack offenses but would retroactively slash prison time for those already doing time. The U.S. Sentencing Commission, which has analyzed the impact of the bill, estimates about 7,600 prisoners – nearly 5% of the federal prison population – would receive a sentence reduction. In most cases, overall crack prison sentences would be cut by at least one-third.

Meanwhile, a marijuana reform newsletter last week reported that a bill to federally legalize marijuana may be coming up for another House floor vote next week, The newsletter’s sources said that “nothing is yet set in stone, despite recent calls to bring the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act to the floor again this month.

marijuana160818Nevertheless, rumors of a floor vote – the second time that the MORE Act reached the full chamber after being approved in 2020 – are rife after congressional Democrats held a private session at a party retreat that included a panel centered on the reform legislation. The bill, which would remove cannabis from the list of controlled substances, cleared the House Judiciary Committee last September.

Bloomberg, GOP Support Clears Senate Path for Bill on Cocaine Sentencing (March 23, 2022)

Washington Times, Schumer joins bipartisan push to cut federal prison time for nearly 7,800 crack cocaine traffickers (March 22, 2022)

Sentencing Law and Policy, Is Congress finally on the verge of equalizing crack and powder cocaine sentences? (March 23, 2022)

Marijuana Moment, Federal Marijuana Legalization Bill May Receive House Floor Vote Next Week, Sources Say (March 23, 2022)

– Thomas L. Root