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

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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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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

Election Leads to Legislative Uncertainty for Pot Reform – Update for November 11, 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.

HOPE FOR MARIJUANA REFORM IN CONGRESS DIMS, BUT POT PROGNOSTICATORS SEE A TWO-YEAR HORIZON FOR RESCHEDULING

marijuana-dc211104The Republicans own the House, the Democrats own the Senate. That seems to be the likeliest scenario right now. In the House, the Republicans need seven more seats of the still-contested seats, the Democrats need 26. In the Senate, the Republicans and Democrats each need two of the three yet-undecided races.

A divided 118th Congress is the likeliest outcome. Even so, Marijuana Moment reports, “there would still a range of legislative possibilities for cannabis reform, including (most optimistically) descheduling.”

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

But the Senate is even more unlikely to force a Republican-controlled House to take up a comprehensive legalization bill such as the Cannabis Administration and Opportunity Act (CAOA), S.4591, that the Democrat-controlled House has been to convince the Senate to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, H.R. 3617.

marijuana220412There still could be some Congressional action in the upcoming lame-duck session – which begins on Monday for 17 legislative days before the end of the year – but it’s likely President Biden will want to ramrod as many as his initiatives as he can while he still owns both houses of Congress.

Nevertheless, marijuana advocates among the House membership has scheduled a hearing for Tuesday to discuss bipartisan marijuana reform issues at the federal and state level.

The House Oversight Civil Rights and Civil Liberties Subcommittee posted a notice of the meeting on Tuesday, as voters in states across the country head to the polls to decide on cannabis legalization ballot measures.

The congressional meeting, titled, “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level,” will take place on November 15. Witness have not yet been announced.

It’s not clear if the hearing will focus on any specific pieces of federal marijuana reform legislation, but Rep. Nancy Mace (R-SC), who serves as the GOP ranking member on the panel, previously told Marijuana Moment that she had received a “promise” from leadership that her States Reform Act (SRA), H.R. 5977, would be taken under consideration in the panel.

marijuana221111That legislation would end federal marijuana prohibition while taking specific steps to ensure that businesses in existing state markets can continue to operate unencumbered by changing federal rules. National Law Journal reported last week that a panel of legal experts it consulted marijuana will be re-scheduled as a Schedule II or III drug by January 20, 2025.

Early last month, President Biden ordered government agencies to study removal of marijuana from the Controlled Substances Act drug schedule.

One expert said it is unlikely cannabis will be descheduled altogether. “I don’t think the federal government will be ready by then to relinquish control over a drug it has categorized by the CSA as one of the most dangerous drugs on the streets for over 50 years.”

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

Marijuana Moment, Congress Will Hold A Marijuana Hearing One Week After Five States Vote On Legalization Ballot Measures (November 8, 2022)

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

– Thomas L. Root