Tag Archives: EQUAL Act

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

Congressional Cannabis Reform Predicted for December – Update for November 29, 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.

INTEREST INCREASES IN PASSING MARIJUANA REFORM

marijuana221111While no one is talking about pushing the EQUAL Act (S.79) over the finish line before the current Congress expires on January 2nd, the last two weeks have seen a flurry of activity in marijuana reform raising hopes that legislation that includes relief for people serving pot-related sentences may yet pass the Senate next month.

On November 16, the Senate passed H.R. 8454, the Medical Marijuana and Cannabidiol Research Expansion Act, and sent the bill to President Joe Biden. The bill removes barriers making it difficult for researchers to study the effectiveness and safety of marijuana-derived medicines. When it passed, Senate Majority Leader Charles Schumer (D-NY) – who controls what bills come up for a full Senate vote – said, “I hope after passing this bill the Senate can make progress on other cannabis legislation, too. I’m still holding productive talks with Democratic and Republican colleagues in the House and the Senate on moving additional bipartisan cannabis legislation in the lame duck.”

Marijuana Moment reported last week that “talks are intensifying over a marijuana banking and expungements bill that Senate leadership is working to finalize, with advocates feeling increasingly optimistic about seeing action” during the final weeks of this Congress.

On January 2, 2023, the 117th Congress comes to an end. Any pending bills that have not been passed will be discarded. A new Congress, the 118th, begins the next day. This means the EQUAL Act, the MORE Act, the First Step Implementation Act, and everything else in the legislative hopper will disappear.

lameduck221201The MORE Act (H.R. 3617) (which has twice passed the House), has been stalled because of the Cannabis Administration and Opportunity Act (CAOA), S.4591, a competing bill introduced by Senators Schumer, Ron Wyden (D-OR) and Cory Booker (D-NJ) last summer. A compromise pot bill was blocked from receiving a unanimous consent Senate vote in September.

While the latest signals indicate that compromise legislation will be less wide-ranging than some initially expected, banking and criminal justice reform appear to remain at the center of the talks. The text of any compromise has yet to be released so it remains unclear what will make it into the final bill.

The negotiations in their current form are leading to “unprecedented levels of optimism” about passing a cannabis reform package by the end of the current Congress, one advocate familiar with the status of negotiations told Marijuana Moment.

Colorado Springs Indy, Landmark bill reaches  president’s desk (November 23, 2022)

Marijuana Moment, Congressional Talks On Marijuana Banking And Expungements Bill Intensify As Advocates Push For Equity Amendments (November 23, 2022)

NORML, NORML Deputy Director Testifies on Marijuana Legalization Before House Subcommittee (November 15, 2022)

– Thomas L. Root

Federal Criminal Justice Reform May Still Have a Pulse – Update for November 14, 2022

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

STILL HOPE FOR CRIMINAL JUSTICE REFORM

hope170313As of today, the Democrats have retained control of the Senate and may even keep the House of Representations (although that is still up in the air). In the House, the Republicans still need six seats to win while the Democrats need 13, but that’s a far cry from last Thursday, when the Dems were down 36 seats to the Republicans’ 7-seat deficit.

Reason reported that “while rising crime created headwinds for candidates who supported criminal justice reform, the apocalyptic reaction never quite materialized… Despite predictions that rising violent crime would sink candidates that backed criminal justice reforms, those candidates mostly survived Tuesday night’s elections.”

So there remains a glimmer of hope that criminal justice reform issues that remain unfinished as of the end of this Congress in January will be resurrected for the next 2-year legislative session.

At the same time, there are hints that the lame-duck session – which begins today for at least another 17 legislative days before Christmas – will take up two bills ready for Senate passage, the EQUAL Act (S.79) and MORE Act (HR.3617)

lameduck221114Princeton University Professor Udi Ofer, former ACLU Deputy National Political Director, said last Thursday that in “the lame duck session… I can see some popular bipartisan reforms pass Congress, including on criminal justice reform. The EQUAL Act, which would end the sentencing disparities between crack and powder cocaine, has more than 10 Republican co-sponsors in the Senate so it can withstand a filibuster and seems ripe for some action this lame-duck session. Same could hold true for federal marijuana reform.”

Last Monday, President Biden – who looks a lot stronger today than he did a week ago – again called on Congress 

to end once and for all the racially discriminatory crack-powder cocaine sentencing disparity and make the change fully retroactive. This step would provide immediate sentencing relief to the 10,000 individuals, more than 90% of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.

As we reported last week, even if the next Congress is divided, Marijuana Moment said, “there would still be a range of legislative possibilities for cannabis reform, including (most optimistically) descheduling.”

marijuana160818Because 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.

Washington Post, Democrats keep control of the Senate with win in Nevada (November 12, 2022)

Real Clear Politics, 2022 House Races (November 14, 2022)

Reason, The Crime Backlash Mostly Failed To Materialize on Election Night (November 9, 2022)

Princeton University School of Public and International Affairs, SPIA Reacts: Scholarly insights on the mid-term elections (November 10, 2022)

The White House, The Biden-⁠Harris Administration Advances Equity and Opportunity for Black Americans and Communities Across the Country (November  6, 2022)

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

– Thomas L. Root

Nope to Dope Reform? – Update for October 24, 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.

EVERYBODY’S TALKIN’ AT ME…

With mid-term elections – where control of both the House and Senate are in play – upon us, voters across the country can’t escape the deluge of candidates talking about how extreme their opponents are, how inflation, crime and taxes are out of control… In fact, they’re talking at us about everything.

Everything except criminal justice reform. The only mention that incarcerated people have been getting are occasional disingenuous attacks on incumbents who “vot[ed] to send COVID-19 stimulus checks to people who are incarcerated.” No one is talking about changing drug policy, even about the easiest lift, marijuana reform.

http://lisa-legalinfo.com/yawnA recent Brookings Institution study found that 86% of Congressional candidates “either made no mention, staked out an unclear position, or explicitly opposed cannabis reform.” The report concluded that “most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years. And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.”

This does not bode well for the MORE Act – already passed by the House – which must be passed by the Senate before the end of December. Any pending bill not passed by then disappears with the end of the 117th Congress. The 118th Congress begins in January with no bills in the hopper, meaning that measures like the EQUAL Act (S.79) and MORE Act (H.R. 3617) – as well as anything else pending – must start over.

The NAACP’s board of directors approved a resolution last Thursday calling for the “immediate passage” of a marijuana banking bill and expressing support for decriminalizing cannabis. The vice chair of the NAACP Board group is specifically directing the message at Senate Majority Leader Chuck Schumer (D-NY), who has held up House-passed legislation on the issue.

However, while NAACP backs ending marijuana prohibition, it wants Congress to use the bipartisan momentum behind incremental reform and quickly pass the Secure and Fair Enforcement (SAFE) Banking Act, H.R. 1996, which has already cleared the House.

marijuana-dc211104At this point, Biden’s order to federal agencies to review marijuana’s Schedule I status may provide a quicker path to decriminalization. The Dept of Justice and Dept of Health and Human Services have committed to expeditiously carrying out the scientific review, which could result in a recommendation to schedule marijuana at a lower level or remove it altogether, effectively legalizing the plant.

Inimai Chettiar of the Justice Action Network wrote in Newsweek last week that “Congress could classify marijuana as a much lower scheduled drug, effectively reducing criminal penalties. Better yet, it could decriminalize marijuana and leave the issue to the states. Both steps have strong bipartisan support among lawmakers and voters alike.”

notime160915Unfortunately, translating public support into Senate action – even on EQUAL and MORE – in the brief period between mid-term elections and the end of the year is a tall order. And if the next Congress has one or both Houses controlled by Republicans, you can pretty much write off Congressional cooperation with a Democrat in the White House.

NPR, Politifact VA: Spanberger voted to send COVID checks to prisoners. So did Republicans (October 17, 2022)

JDSupra, Cannabis & the Mid-Terms: What Tax Policy? (October 18, 2022)

The Marshall Project, Don’t Expect Mass Prison Releases From Biden’s Marijuana Clemency (October 15, 2022)

Marijuana Moment, NAACP Calls For ‘Immediate Passage’ Of Marijuana Banking Bill And Pushes For Legalization In New Resolution (October 21, 2022)

Marijuana Moment, Congressional Researchers Lay Out Marijuana Options For Lawmakers Following Biden’s Scheduling Directive (October 20, 2022)

Newsweek, Biden’s Marijuana Executive Order Is a Big Step, But There’s Much More to Do | Opinion (October 21, 2022)

– Thomas L. Root

Clock Running Out on Drug Reform – Update for October 14, 2022

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

EXPERTS PESSIMISTIC ABOUT MORE ACT, EQUAL ACT

clock160620Even as a record 68% of the country favors marijuana legalization, according to a recent Gallup poll, a cannabis industry reporter last week said passage of the MORE Act or something else that decriminalizes marijuana is a long way off. “Five experts on politics in the weed industry I spoke with mostly agreed,” Sean Teehan wrote, saying the largest hurdles are a gridlocked Congress, a lack of political incentives for lawmakers to support legislation – or significant pro-cannabis reform – and an absence of consensus on what legislation should look like in practice.”

According to John Hudak, deputy director of the Center for Effective Public Management and the senior fellow in governance studies at the Brookings Institution, the main reason legislation is extremely unlikely to pass in the current congressional session ending on Jan 6, 2023, is that the issue simply doesn’t have enough support in the Senate.

“The votes just aren’t there – they’re barely there in the House. Democrats don’t even have the 50 votes in the Senate for it, and they need 60,” Hudak said.

The situation doesn’t look brighter following the November elections, said Jay Wright, a partner at an Alabama law firm and editor of the National Law Review. “I think if you see Republicans take the House in this upcoming midterm I think it’s going to be a gridlocked government and I don’t know if this is going to be the kind of issue that’s going to be on the front burner,” Wright said.

The EQUAL Act has been attached to the House version of the National Defense Authorization Act by Rep Mikie Sherrill (D-NJ). The amendment is one of a large number of riders attached to the NDAA, few of which ever survive passage of the annual appropriations bill.

marijuana160818“Whether senators will go along with enacting any of these reforms in the final bill remains to be seen,” Marijuana Moment reported last week, “but they would not be included under Senate leaders’ proposed amendment to entirely substitute the language of the House bill with the chamber’s own approach that will be considered when lawmakers return to Capitol Hill after the midterm elections.”

In fact, some suggest that the President’s administrative review of the scheduling of marijuana may be a trap. “Legalizing via Congress is (relatively) quick and easy,” Bruce Barcott wrote this week in Leafly. “The MORE Act, which would end the federal prohibition of marijuana, has now passed the House twice, but does not currently have enough support in the Senate.”

However, the Biden review is fraught with peril, Barcott says:

This order will be slow-walked by the FDA and DEA. They will run out the clock on the first Biden Administration.

If Biden is defeated in 2024, his Republican successor will kill the initiative. Even if the FDA and DEA come in with a shocking report advocating the removal of cannabis from the federal drug schedule, the new president will simply round file it. This has, sadly, happened before. If you don’t know the notorious story of President Nixon and the Shafer Commission, I invite you to wallow in that infamous chapter of American history.

If President Biden wins a second term in 2024, the outcome could be even worse.

If Biden presses DEA and FDA to act, his “fresh look” at marijuana’s status could result in a decision to keep it as Schedule I or re-schedule cannabis as a Schedule II substance. Both would be disastrous for pot decriminalization.

This is not likely to end well.

NY Cannabis Insider,  An honest take on the likelihood of federal marijuana legalization (October 3, 2022)

Marijuana Moment, Senators File NDAA Amendments To Legalize Medical Marijuana For Military Veterans And Protect VA Home Loan Benefits (October 3, 2022)

Leafly, President Biden’s marijuana ‘review’ could be a deadly trap (October 13, 2022)

– Thomas L. Root

Congress is Back, Criminal Justice Reform Is Not – Update for September 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.

LEGISLATORS GENERATING HEAT BUT NOT LIGHT

Both Houses of Congress are back from summer vacation. Criminal justice reform measures are pending (and may be poised for passage). Except midterm elections are 49 days away, and no one up for re-election is anticipating any traction from being in favor of helping out prisoners.

Anyone who wants to know what the Senate thinks of convicted persons needs look no further than last week’s 47-50 rejection of former Federal Public Defender Arianna J. Freeman as a 3rd Circuit appellate judge. Freeman was criticized by Senate Judiciary Republicans last March, when the Judiciary Committee did not approve her nomination, because of her success in overturning a death row inmate’s sentence. Critics called her a “zealot” for fighting capital punishment.

Freeman said that her office represented the man “as was our duty… Ultimately, Mr. Williams actually prevailed both in the U.S. Supreme Court as well as the Pennsylvania courts because of unlawfulness that took place during the course of his conviction. My colleagues and I pursued those available arguments under the law and we did prevail.”

Winning cases matters to the Senate – unless you represent criminal defendants. To the Senate, her success was her failing.

dema160222Nothing is easier to demagogue than being tough on crime.

The two criminal justice reform measures most likely to pass are the EQUAL Act (S.79) and the MORE Act (HR 3617). Last week, the Washington Post expressed pessimism over whether the EQUAL Act – which would equalize sentences for crack and powder cocaine – could pass. “The measure has stalled over concerns that Republicans could push for divisive amendments,” the Post said. “As the Senate juggles a number of measures ahead of November’s midterm elections, advocates worry that the window for action is closing. Democrats should continue to push for the Equal Act — but also be open to compromise if necessary. A possible middle ground might involve a 2.5-to-1 ratio, achieved entirely by increasing the quantities of crack that trigger mandatory minimums. This ratio could be further reduced or brought to parity in the future, and a deal could be supplemented with funding for research on the addictiveness and deadliness of these substances, as Mr. Grassley has pushed for.”

marijuana-dc211104

Meanwhile, the cannabis industry is lobbying hard for marijuana reform “before midterm elections that could reshape the political landscape on Capitol Hill,” according to a Canadian newspaper:

In April, the House passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), which would effectively remove cannabis from the U.S. list of controlled substances and provide sentence relief to people serving marijuana sentence.

The MORE Act’s prospects in the Senate are less certain. Senate Majority Leader Chuck Schumer (D-NY), the most powerful Democrat in the upper chamber, has already introduced the Cannabis Administration and Opportunity Act. The CAOA also includes criminal sentence reform, but contains provisions regulating the cannabis industry that are much different than MORE.

What may happen is that the SAFE Banking Act, a more incremental step that does not include sentence reform but one with more bipartisan support in Congress than either MORE or CAOA, may be substituted. “We know right now, if SAFE were to come up, it would be a 65 to 70 vote,” an industry spokesman says. “We know the votes are there for SAFE, so our focus is on getting SAFE over the finish line.”

Good news for the industry, but bad news for marijuana defendants.

The Prohibiting Punishment of Acquitted Conduct Act of 2021 (S.601) has gone nowhere in the Senate since being passed out of the Judiciary Committee in June 2021. But supporters may get what they want from an unexpected quarter.

hammer160509In Shaw v. United States, the Supreme Court has been asked to hear a case where the district court used conduct of which the defendant was acquitted to increase his sentence (although still within the statutory maximum). The Supremes have not yet ruled on the petition for certiorari, but the petition has collected amicus briefs urging its grant from the conservative Cato Institute to the liberal Americans for Prosperity, as well as from Prof. Doug Berman and The National Association of Federal Defenders.

Last week, a Bloomberg Law opinion piece argued for the Court to hear it:

Taking up the issue of acquitted conduct sentencing this next term will give the court another opportunity to tackle a criminal justice issue that unites people from across the spectrum… At least three current justices have questioned or called for an end to this unjust practice… There is reason to hope other members of the court would also agree acquitted conduct sentencing is unconstitutional given their professional backgrounds and experience on the front lines working in the criminal justice system.”

Washington Times, Biden judicial nominee loses Senate confirmation vote (September 13, 2022)

Washington Post, The powder vs. crack cocaine disparity still exists, and it’s still unfair (September 15, 2022)

Chronicle-Journal, As midterms approach, Capitol Hill lawmakers push banking reforms for legal cannabis (September 15, 2022)

Shaw v. United States, Case No 22-118 (petition for cert pending)

Bloomberg, US Supreme Court Should Tackle Acquitted Conduct Sentencing (September 14, 2022)

– Thomas L. Root

Back to School – Update for September 1, 2022

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

A LEGISLATIVE PRIMER

hateschool220902For those of you who sat in the back row in high school government class throwing spitballs, here’s what you missed about how our laws are made.  Every year or so, I find it necessary to cover the Congressional essentials. Now, with the Senate and House about to  return from their August vacations in another week or so, here are a few things to remember about the Congressional legislative process.

First, a “Congress” is a limited-time deal, a two-year conclave of lawmakers. The current Congress, called the “117th Congress,” will end on January 2, 2023. A new one, the 118th Congress will begin its two-year run begin the next day.

During the two-year Congress, thousands of bills and resolutions will be proposed. Few will get passed. The ones that don’t make it through the House and Senate and to the president’s desk for signing die when the 117th Congress ends.

Of the many criminal justice bills that have been introduced since January 2, 2022, only two have any real chance of passage. The EQUAL Act (S.79) – which reduces crack penalties to match cocaine powder penalties – has passed the House but awaits a Senate vote. The MORE Act (HR 3617) – which would decriminalize marijuana – has passed the House twice but is awaiting Senate action.

The mid-term election comes the first week of November. Every member of the House is up for re-election, as are one-third of the senators. And that’s a problem. A 2/3 majority the Senate supports crack cocaine reform, and an even greater majority supports decriminalization of marijuana. So passage ought to be easy, right?

demagogue220902The biggest obstacle to passing either of these bills right now is the upcoming election. A strong anti-crime sentiment has taken root in the country, and to avoid getting swept up in an anti-crime tide, the Wall Street Journal said last week, “Democrats will have to show they’re serious about the issue.” hardly anything about crack cocaine punishment and marijuana decriminalization have anything to do with the kinds of local violent crime they concern the public. Nevertheless, you can be sure that the Senate Majority Leader – who controls the agenda – will not force senators to take a stand on the bills prior to the midterm election. No legislator wants to do the right thing on the EQUAL Act, for example, only to have an opponent at home claim that the senator voted to let drug dealers out of prison early.

The problem with cannabis reform is different. While virtually no one objects to decriminalization, the real battle over marijuana relates to banking regulation and taxation. A group of senators led by Richard Durbin (D-IL) has proposed their own alternative bill, And that has taken the wind out of the sails for the MORE Act.

The bottom line is this: The financial stakes in decriminalizing and regulating marijuana across the nation are huge. Concerns about adjusting federal sentences for what is likely not to be more than 20,000 prisoners (less than .01% of the population) is not important enough to control the debate.

time161229There aren’t many legislation days left for the 117th Congress. While it is not clear that EQUAL or MORE will make it through the Senate, it is safe to predict that no other criminal justice legislation – such as First Step retroactivity, prohibiting punishment for acquitted conduct, or adjustments to the elderly home detention pilot program – will become law in this Congress. The prospect is that come January, we’ll be starting over.

Wall Street Journal, Don’t Count Out Crime as a 2022 Midterm Issue (August 18, 2022)

The American Prospect, Democrats in Danger of Missing the Marijuana Moment (August 25, 2022)

JDSupra, Cannabis and Social Justice Reform: Are We Doing Enough? (August 25, 2022)

– Thomas L. Root