Tag Archives: criminal justice reform

Why We Should Expect Nothing from Congress This Year – Update for January 23, 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.

BIDEN’S DISAPPEARING SUPPORT FOR CRIMINAL JUSTICE REFORM

The emails are unrelenting. When will the Second Step Act pass? What is Congress doing for people with 18 USC 924(c) convictions? Is it true they’re bringing back CARES Act home confinement? And the old favorite: How about the 65% law?

nothinghere190906My answers have not changed: Never.  Nothing.  No.  And ‘there’s no 65% law.’

Back when he was a candidate in 2020, President Biden staked out big, bold stances on criminal justice reform. We imagined what The Hill last week called “a ground-up reworking of the carceral state,” with all First Step Act changes in gun and drug crime law becoming retroactive, substantial marijuana decriminalization, passage of the EQUAL Act… As The Hill put it, “Biden’s vows of far-reaching reform were so numerous that the Prison Policy Initiative had to limit itself to listing only his five biggest pledges in a post-election recap. The Marshall Project called Biden’s criminal justice platform “the most progressive … of any major party candidate in generations.”

Four years later, Biden’s criminal justice reform efforts have brought forth a mouse. His grand 2020 pledges have disappeared from his website, and “a shroud of silence has fallen over Democratic offices when queried about the issue,” as BNN described it last week.

Last week, the Dept of Justice reported that Federal arrests during fiscal year 2022 were up 24% from the number in FY 2021. Immigration offenses accounted for 24% of those arrests, supervised release violations were almost as numerous at 23%, and drug trafficking offenses accounted for 21%.

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It is significant that criminal justice reform people – who usually have nothing good to say about President Trump – are comparing Biden’s reform record unfavorably to Trump’s, whose First Step Act “has shown positive results, with those released under it being less likely to reoffend, demonstrating that federal criminal justice reform can be effective,” BNN said.

So what happened? The Hill says Biden’s abandonment of meaningful criminal justice reform

has been driven in large part by a wildly successful Republican messaging campaign. GOP politicians, aided by a friendly network of right-wing media outlets, have spent much of their time since 2020 selling American voters on the fiction that crime is surging. They’ve also made sure those Americans know to lay the blame on so-called “soft on crime” Democrats, whom they universally portray as eager to release dangerous felons onto the street. That messaging helped Republicans rack up wins that cost Democrats control of the House.

“The states are all still passing criminal justice reforms or fighting for them,” Crime and Justice News quoted Lorenzo Jones of the Katal Center for Equity, Health and Justice as saying. “The people doing that are all local, but those local people have been largely shut out of the national spotlight.” Burns believes that Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform. He urges Biden to bring together “neglected criminal justice reform groups and do[] some much-needed listening.”

nothing190924Terrence Coffie, an adjunct assistant professor at New York University (and a man whose first academic achievement was getting his GED in 1993 while serving a drug trafficking sentence), said Biden could turn around his abandonment of criminal justice reform by leading an effort to repeal the Violent Crime Control and Law Enforcement Act of 1994, an “outdated and draconian piece of legislation…” that has “perpetuat[ed] harm rather than fostering justice.” Writing in Forbes last week, Walter Pavlo said Coffie “believes it is a critical step towards rectifying historical injustices and forging a more equitable path forward for marginalized communities.”

Just don’t expect any steps along that “equitable path” to be taken in 2024, with Democrats frightened of criminal justice reform and Republicans decrying a violent crime wave sweeping America.

The Hill, What happened to Biden’s promises on criminal justice reform? (January 17, 2024)

BNN, Biden’s Criminal Justice Reform: Promises Unfulfilled Amidst Political Play (January 17, 2024)

DOJ Office of Justice Programs, Federal Arrests Increase 24% After Falling to a 20-Year Low (January 18, 2024)

Crime and Justice News, Have Biden, Other Dems Caved On Criminal Justice Reform? (January 19, 2024)

Forbes, Biden’s Mixed Messaging On Criminal Justice Reform (January 15, 2024)

– Thomas L. Root

“Say It Ain’t So, Joe” – Biden’s Failure on Criminal Justice Reform – Update for March 7, 2022

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

WHY NOTHING IS BEING DONE ON CRIMINAL JUSTICE REFORM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Criminal Justice Reform Wonders Where the President Is – Update for August 5, 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.

I PROMISE…

promise210805Every week, I get dozens of emails asking about new criminal justice laws that have passed (zero) and the status of the EQUAL Act or First Step Implementation Act or the Safer Detention Act or any of a dozen really good criminal reform bills pending before Congress.

What, you think I’m not going to cover any progress or, better yet, the passage of the bills in this blog? I promise – if there’s significant progress on any criminal justice bill (or even insignificant progress), I will cover it. Right away.

I mention this because more and more articles are being written about President Biden as a disappointment on criminal justice reform. Last week, Law 360 said, “One of President Joe Biden’s most powerful tools for advancing criminal justice reform is his voice and yet, despite his campaign promises, he has been mostly silent on the issue while in office, frustrating criminal justice reform advocates.”

The criminal justice reform people “would have liked Biden to do more than just talk about criminal justice reform in his first six months in office, but they are even more frustrated by the fact that he isn’t loudly advocating for reform and isn’t letting people know when he will act on his reform promises.”

biden210805Andrea James, a former criminal defense attorney, said she attended a White House virtual discussion in May about reducing mass incarceration, shortly after Biden’s first 100 days in office. James has been fighting for clemencies through her organization, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, a group that sought clemency for 100 women within Biden’s first 100 days.

Biden promised during his presidential campaign that he would use his presidential clemency power to secure the release of individuals facing unduly long sentences for certain nonviolent and drug offenses. “The president can do this with the stroke of a pen and there is absolutely no reason to wait,” James said.

Meanwhile, AP reported last Thursday that while Biden took quick action after his inauguration to shift federal inmates out of privately run prisons, promising it was “just the beginning of my administration’s plan to address systemic problems in our criminal justice system,” the President is overlooking a prime — and, in some ways, easier — target for improving the conditions of incarcerated people: the federal Bureau of Prisons.

The administration has full power to control staffing, transparency, health care, most of all, BOP leadership, the article says. BOP Director Michael Carvajal, “a Trump holdover… who has been in charge as the coronavirus raged behind bars, infecting more than 43,000 federal inmates, still runs the agency. Administration officials have been mulling whether to replace him, but no decision has been made, according to officials who spoke to The Associated Press.

First Step Act programs to reduce recidivism are hampered because there are not enough workers to facilitate them. Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. “There need to be enough people working in a prison to keep people housed in a prison safe. And they must be able to get access to the programs that should allow their release,” said Maria Morris of the American Civil Liberties Union’s National Prison Project.

A key part of Biden’s agenda racial justice, and nowhere is racial equity a more pressing issue than inside prison, where the inmate population is “still disproportionately filled with Black people.”

Advocates say that while Biden “has talked a good game, his actions tell a different story, particularly because the Justice Department has refused to reverse a legal opinion requiring inmates released during the pandemic to return to prison.”

return161227“There isn’t an appetite in the administration to act,” said Inimai Chettiar of the Justice Action Network.

The Hill reported last week that the White House continues to say nothing about whether Biden will do something to permit people on CARES Act home confinement to stay on home confinement. The Administration has been under pressure for months to revoke the Trump era legal memo, which concludes that CARES Act people have to go back to prison when the COVID emergency ends.

Some have proposed Biden use clemency to immediately end the sentences for those who have been living outside prison walls or push for the expanded use of compassionate release for the inmates.

“With a new rise in COVID-19 cases across the country, it’s unlikely the pandemic will be declared over any time soon,” The Hill said. “But as it currently stands, thousands will have to return to prison when it ends, and the Biden administration has not offered any public guidance on whether that could change.”

Law 360, Advocates Frustrated By Biden’s Silence On Justice Reform (July 25, 2021) 

Associated Press, Is Biden overlooking Bureau of Prisons as reform target? (July 29, 2021)

The Hill, Inmates grapple with uncertainty over Biden prison plan (July 30, 2021)

– Thomas L. Root

Reform When? – Update for May 7, 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.

WHERE’S CRIMINAL JUSTICE REFORM?

Some advocates are starting to lose patience with the Biden Administration’s lack of a concrete criminal justice reform package.

lips210507Kara Gotsch of The Sentencing Project told NPR last week, “The lip service is good, but we need more, more action.” And Kevin Ring, president of FAMM, said while he is guardedly optimistic that the White House is trying to lay the groundwork for more foundational change. “But there‘s also some skepticism that he was going to have to tear down the house that he built in some ways through the sentencing laws and prison policies he not only sponsored but bragged about,” Ring said.

But last Friday, with “Second Chance Month” running out, White House officials held a virtual listening session with criminal justice advocates who were previously incarcerated to receive input on how to advance prison reform through policy.

White House counsel Dana Remus and domestic policy adviser Susan Rice were among the leaders of the conference, which included leaders from 10 advocacy groups such as Forward Justice, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and JustLeadershipUSA.

Biden has not yet moved to end the use of the death penalty, despite promising to do so on the campaign trail. And while he has pushed for action on police reform legislation following the conviction of former Minneapolis police officer Derek Chauvin in the murder of George Floyd, Biden has kept a distance from legislative negotiations on Capitol Hill as Democratic and Republican lawmakers try to find common ground.

Friday’s meeting was held to commemorate Second Chance Month, a nationwide effort to highlight the challenges faced by people who have been previously convicted.

“Too many people — disproportionately black and brown people — are incarcerated. Too many face an uphill struggle to secure a decent job, stable housing, and basic opportunity when they return from prison,” the White House said in the readout. “Those who have been through the system have particular insight into its shortcomings and the reforms that are needed.”

actions210507Whether the listening ripens into a criminal justice reform proposal is anyone’s guess, but with Biden focused on his infrastructure proposal, some suspect reform is not a top Biden priority. USA Today last weekend suggested actions speak louder than platitudes. The paper blasted DOJ’s intransigence in opposing virtually every compassionate release motion filed:

But talk is cheap, and while the administration’s rhetoric is promising, second chances remain few and far between in a federal criminal system where the Department of Justice continues to thwart the administration’s goals by opposing the release of individuals who are rehabilitated and do not pose a risk to the public. Making good on his commitment to criminal justice reform requires more than rhetoric. The Biden administration’s Department of Justice must change course.

NPR, Activists Wait For Biden To Take Bold Action On Criminal Justice Reform (April 28, 2021)

The Hill, White House officials meet virtually with criminal justice reform advocates (May 1, 2021)

USA Today, Biden administration needs to walk the walk on second chances for prisoners (May 1, 2021)

– Thomas L. Root

Patience, People, on Criminal Justice Reform – Update for April 8, 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.

WHEN WILL BIDEN TACKLE CRIMINAL JUSTICE REFORM?

The most common question I have gotten from inmates since January is when Congress will pass criminal justice reform. It brings to mind the old variation on the serenity prayer: “Lord, grant me patience… and I want it NOW.”

Reform200819But patience is what everyone needs. There’s the infrastructure, the racial reckoning, and now the gun control push (which will probably prevent a minuscule number of gun crimes, but looks all shiny and robust). I am convinced we will get to criminal justice reform, but it will take a bit.

Still, there are some encouraging signs. First, President Biden’s Dept of Justice followed up on its letter to the Supreme Court a few weeks ago with a brief filed last week in Terry v. United States, arguing that Section 404 of the First Step Act covers low-level crack cocaine offenders sentenced under 21 USC § 841(b)(1)(C), “a dramatic reversal that comes more than three decades after a Biden-crafted bill helped to fuel disproportionately harsh penalties for Black drug offenders,” according to The Hill.

But Biden promised more. During his campaign, he promised to address mandatory minimums. Nkechi Taifa, a Washington-based criminal justice reform advocate, believes that will change soon. Taifa said last week that he has been in touch with the Biden administration. “With respect to drugs,” he said, “it’s only about the weight of drugs and amount of drugs that dictates the time you serve. It doesn’t matter what the judge thinks, doesn’t matter what your characteristics are. Biden has said he’ll do away with it.”

return161227Cynthia Roseberry of the ACLU said on NPR last week that Biden could do a lot with a stroke of a pen, such as reverse the DOJ legal opinion in January that people on CARES Act home confinement had to return to prison when the pandemic ended. Last week, NPR reported, “prisoner rights groups asked Biden and Attorney General Merrick Garland to intervene, citing their comments about the need to reduce the prison population.”

And just today, FAMM – which has been active in urging the Dept. of Justice to reverse the legal opinion – is urging people to call the Attorney General to lobby him to take action.

Biden has proclaimed April a second chance month for people involved in the justice system. Roseberry told NPR she wants to see Biden use his sweeping power to grant clemency during the month.

The Hill, Biden urges leniency for harsh crack sentences fueled by his crime bill (March 31, 2021)

WTVR-TV, When will President Biden address criminal justice reform? (April 1, 2021)

NPR, Criminal Justice Reform Advocates Say They’re Anxious To See More Action From Biden (April 2, 2021)

– Thomas L. Root

Some Reform Advice for Uncle Joe – Update for March 25, 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.

HOW BIDEN CAN REFORM CRIMINAL JUSTICE

Sometimes, it’s hard to remember the three things my wife wants me to pick up at the local IGA. For that reason, I have empathy for our septuagenarian President trying to wrap his head around the 14 steps that law professors Mark Osler (a clemency expert) and Rachel Barkow (former Sentencing Commission member) proposed last week that he take to reform criminal justice.

henhouse180307Writing in The Appeal, the profs argued (among other things) that “Biden inherits a clemency crisis. There are currently more than 15,000 petitions waiting for an answer, having piled up over the course of the Trump presidency… The current structure bears not one but two fatal flaws: It is overly bureaucratic and is a captive of the deeply conflicted DOJ.” It’s no secret that the fox has been guarding the henhouse – too much of clemency decision-making is embedded in the Department of Justice, the very institution that sought the too-long sentences in the first place and is thus inclined to say no to requests to overturn its initial judgments.

They also called on Biden to reform how the BOP processes sentence reduction motions filed pursuant to 18 USC § 3582(c)(1)(A)(i), the so-called compassionate release motions. “DOJ needs to shift course,” Barkow and Osler said, “particularly during the pandemic. It should identify elderly and infirm people in prison for release — not merely home confinement — and, at a minimum, it should support their release when requested.”

In addition, they argued the Administration should make CARES Act home confinement permanent for those who have been sent there during the pandemic, and that the DOJ commit to programming that allows people in prison to earn time off their sentence after participating in programming. “During the Trump Administration,” they said, “BOP proposed a rule that would block reduction eligibility for far too many people, make it too difficult to earn credits, and far too easy to lose them. While public comment on that proposal closed on January 25, it is not too late for DOJ to shift course and propose a different rule that makes this programming—and therefore release eligibility—as widely available as possible.”

social210325Most significantly, they argued that “flawed compassionate release and First Step Act implementation are emblematic of larger problems at the BOP. Nearly everyone outside of government who deals with the BOP finds it to be dysfunctional; it’s inefficient, overly bureaucratic, and prone to cruelty.” They propose legislation to shift the BOP to the Department of Health and Human Services. “In the end, the work of the BOP is to not only securely detain people but to prepare them for life after incarceration. They are much better at the first task than the second. A shift to a department dominated by social work would help change the culture that produces the BOP’s current problems.”

Along with that, they argued, the BOP needs to do a better job of the basic “blocking and tackling in their field, and that starts with ensuring adequate staffing throughout the system. There needs to be additional resources for mental health needs, and even for basic issues like ensuring there is a state ID for every person in prison when they are released.”

The Appeal, 14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System (March 15, 2021)

– Thomas L. Root

Let’s Get Moving, People! – Update for February 12, 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.

LORD, GRANT ME PATIENCE… AND I WANT IT NOW

time210212With Biden in office, prisoners have been jamming my email inbox asking when President Biden will be tackling criminal justice reform. Everyone, including me, wants it now.

For that matter, people are asking whether the $1.9 trillion stimulus will include changes in compassionate release, CARES Act release and elderly offender home confinement. The answer: no one knows.

The stimulus bill’s details have not yet been released. For all we know, the details have not yet been written. We don’t know whether prisoners will qualify for the $1,400 stimulus. We don’t know about sentencing breaks, or extending home confinement past the end of the pandemic. The best estimates are that the text will be available some time in March.

advice210212The lack of action right now hasn’t stopped people from proposing what Biden should do. Reason magazine called for creation of a new pardon office, independent of the Justice Department, to handle clemency petitions at volume, with an eye toward cutting the sort of excessive drug sentences that both Obama and Trump criticized but did not address. Reason noted this wouldn’t require an act of Congress—just the will of a president able to admit the size and scope of the problem. Some Latino groups are proposing that Biden issue a mass presidential pardon for at least some of the estimated 11 million people in the country illegally.

Writing in The Hill, Marc Levin argued that among the most important items deserving action by the White House and Congress are abolition of drug mandatory minimums and allowing courts to take a second look at certain sentences after individuals have spent many years behind bars. Others include laws prohibiting prosecutors from contaminating the sentencing phase of a trial with references to acquitted conduct waiving federal laws that interfere with state legalization of medicinal or recreational marijuana.

There is no shortage of suggestions. It’s just no one knows when it’s going to happen.

Reason, A Practical Wish List for Joe Biden (February 1, 2021)

USA Today, A pardon for ‘Dreamers’? Some activists tout amnesty for undocumented immigrants if Congress doesn’t act (February 2, 2021)

The Hill, Build a bridge, not a wall, between administrations on justice reform (February 1, 2021)

– Thomas L. Root

Reading the Tea Leaves on Biden’s Criminal Justice Reform – Update for February 1, 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.

CHANGE IS GONNA COME… SLOWLY BUT SURELY

bidensuperman210201Biden ain’t Superman. For that reason, people who have been lighting up my inbox with emails asking whether Biden has done away with mandatory minimums should take a deep breath. A President cannot abolish mandatory minimums. Only Congress can do that.

But there’s a lot of early indication that Biden is going to be active in criminal justice reform. Last week, the acting attorney general pulled the Trump administration’s May 10, 2017, charging and sentencing memo, which required US Attorneys to pursue the harshest charges and stiffest penalties. The new policy, a rollback to the Obama era, “ensures that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts.”

Last week, I reported that Trump’s DOJ issued a legal opinion that CARES Act inmates on home confinement would have to return to prison after the pandemic ends. Writing in USA Today, three criminal justice advocates argued that Biden “should immediately rescind the Trump administration’s legal opinion, and should identify more people who could be safely released early back to society, with priority “ given to those who are most vulnerable to COVID-19.

The ACLU announced the launching of an ad campaign calling on Biden to carry out his campaign promise to cut the number of incarcerated persons in the country. The campaign calls for clemency using set criteria, such as focusing on people who, if they were sentenced today, would not receive the same sentence, and releasing the elderly, the medically vulnerable and people locked up for technical probation or supervised release violations.

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Not to be outdone, FAMM and the Prison Fellowship last week announced the “End the Disparity” campaign, to urge Congress to eliminate the 18:1 ratio between crack and powder cocaine-related offenses, making them one-to-one. Senators Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois), both members of the Senate Judiciary Committee, announced legislation that will do so, eliminating the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced.

Before the 2010 Fair Sentencing Act, the penalties for one gram of crack was the same as for 100 grams of powder cocaine, resulting in horrific sentences for people with small quantities of crack.  Those people were mostly black, crack being a drug of choice for poorer urban communities (which also were mostly black). In 2010, the Fair Sentencing Act introduced a bit of sanity, but the ratio didn’t drop to 1:1 (a concession to some Jefferson Beauregard Sessions III-type senators to get them to vote for the measure).

So, now, a gram of crack is equal to 18 grams of powder, fairer than before but still a differentiation that is untethered to common sense. The Booker-Durbin bill would drop the ratio to 1:1, if it passes. The fact that both sponsors are on the Judiciary Committee (and Durbin will probably be running the Committee) greatly increases those odds.

HEROES210201Two questions loom large for federal inmates. First, will Biden’s proposed stimulus bill, many elements of which are expected to be drawn from House Democrats’ $3.4 trillion HEROES Act (passed in May but blocked by the GOP-controlled Senate), include breaks for compassionate release, CARES Act releases and elderly offenders? Second, when will Congress see a sweeping criminal justice reform bill?

The details of the stimulus bill have not yet been released. Just like with the HEROES Act, which we didn’t get to read until almost the day it was passed, we will have to wait. As for criminal justice reform, no one knows when legislation will be filed or how long it will take to past.

HuffPost, DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy (January 29, 2021)

Courthouse News Service, Biden Moves to End Federal Private Prisons as Part of Racial Equity Plan (January 26, 2021)

Bloomberg, Biden’s Go-Big Stimulus Plans Set Up Fresh Fight in Senate (January 11, 2021)

USA Today, Biden’s executive orders on criminal justice should extend to inmates sent home by COVID (January 28, 2021)

The Hill, ACLU pressing Biden to stick to promise of decarceration with new ad buy (January 28, 2021)

EIN Presswire, FAMM and Prison Fellowship Launch #EndTheDisparity Campaign (January 28, 2021)

Office of Sen. Cory Booker, Booker and Durbin Announce Legislation To Eliminate Federal Crack and Powder Cocaine Sentencing Disparity (January 28, 2021)

Bloomberg Law, Criminal Justice Changes Need Harris to Lead, Advocates Say (January 26, 2021)

– Thomas L. Root

Trump’s Not Feeling the Love from First Step Act – Update for October 3, 2019

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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.

TRUMP SOUR ON CRIMINAL JUSTICE REFORM

When President Trump started planning his reelection last spring, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s passage of the First Step Act. Kushner reiterated the positive selling points of that bill, but Trump wasn’t interested. He complained and told Kushner he didn’t think his core voters would care much about a bipartisan deal.

angrytrump191003Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Politico reported that unidentified White House officials congressional aides and friends of the president, say that Trump no longer sees criminal justice reform as a résumé booster heading into 2020.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last Tuesday that Trump’s change of heart “portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead.” But one White House official said, “It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it.”

Politico, Trump snubs Jared Kushner’s signature accomplishment (Sept. 24)

Sentencing Law and Policy, Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement (Sept 24)

– Thomas L. Root