Tag Archives: EQUAL Act

Biden’s “Safer America Plan” Backs EQUAL Act – Update for August 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.

SAFER AMERICA PLAN  BACKS EQUAL ACT, BUT IS IT ENOUGH?

President Biden rolled out a “Safer America Plan” last week, a proposal to address public concern about crime rates that is probably intended to blunt the issue before November’s midterm elections.

The Plan represents the President’s hopes and not a firm legislative proposal. But amid the $35 billion proposal to support law enforcement, gun control, and crime prevention, the Plan “calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.”

This, of course, is the EQUAL Act (S.79).

EQUAL would provide immediate sentencing relief to an estimated 10,000 inmates – more than 90% of whom are black – currently serving time in federal prison pursuant to the crack/powder disparity, according to the White House.

President Biden’s backing of the EQUAL Act is not surprising, but in the wake of a big Democrat win in Congress last week on the Inflation Reduction Act, the Senate may have the energy to tackle EQUAL. It will have to be after the August recess, and that brings it within 60 days of the November election. It still looks likely nothing will happen on EQUAL until after the November 8th midterm election.

In an August 1st letter to Congress, the United States Conference of Catholic Bishops pressed for passage of EQUAL. “We cannot ignore the racial impact of current federal cocaine sentences when Blacks are more than three times as likely to be convicted for crack cocaine trafficking as for powder cocaine trafficking,”  Bishops Paul S. Coakley and Shelton J. Fabre wrote.

equal220812

An amendment to add the EQUAL Act to the National Defense Authorization Act (H.R. 4350) passed the House of Representatives on July 19 with bipartisan support.  But the likelihood that the provision will survive Senate passage of the NDAA is low:  Unrelated amendments are routinely attached to NDAAs but are often negotiated out in the process of reconciling House and Senate versions of the bill.

The Catholic News Agency report on the bishops’ letter suggests that despite broad support, EQUAL’s future may be bleak:

The EQUAL Act has an uncertain future in the Senate. Since it has 11 Republican co-sponsors, it could pass as a stand-alone bill. However, the ranking Republican member of the Judiciary Committee, Sen. Charles Grassley, has his own bill to address disparities in drug sentencing. His legislation would reduce but not eliminate the disparity. 

White House, Safer America Plan (August 1, 2022)

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

– Thomas L. Root

Musings on a Slow Month – Update for July 26, 2022

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

THE GOOD, THE BAD, AND THE WEIRD

summertime220725In the only good news to come from Washington so far this sleepy July, Senate Democrats have introduced a bill to decriminalize marijuana at the federal level this week, although the legislation faces long odds in the evenly divided chamber.

Majority Leader Charles Schumer (D-NY) worked with Sen Cory Booker (D-NJ) and Ron Wyden (D-OR) on the measure. The senators circulated a draft of the bill last year and made tweaks after feedback from Senate committees.

The Cannabis Administration and Opportunity Act (S.4591) would remove marijuana from the list of drugs covered by the Controlled Substances Act. States, however, can still maintain and create prohibitions on producing and distributing marijuana.

marijuana160818The CAOA is the Senate’s answer to the MORE Act (H.R. 3617), passed in the House last spring on a 220-204 vote. Like the MORE Act, the CAOA will require all federal non-violent marijuana-related convictions and arrests be expunged within a year. Some lawmakers on both sides of the aisle have criticized Schumer for trying to push through a broad cannabis reform bill at the expense of a marijuana banking bill that has greater bipartisan support.

The bad is that the EQUAL Act (S.79), which passed the House (361-66) last September, remains stalled in the Senate. The Act, which would equalize sentences for crack and powder cocaine (and offer retroactivity to anyone serving a crack offense now) has well over 60 votes in the Senate. The Senate Majority Leader – the guy who schedules votes on bills – is a cosponsor. So what’s the holdup?

In a long article on a crack cocaine defendant who finally got compassionate release, the Mississippi Free Press last week reported, “FAMM President Ring told the Mississippi Free Press more about what he sees as the senators’ political calculations. ‘The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it because that’s usually how the process works,’ he said.

Ring said that votes on amendments unrelated to the bill can be “weaponized by political opponents… As a result, the political calculation has been made to shelve the bill in the Senate.”

crackpowder160606In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in June 23, 2022, letter, indicated that the group is concerned about a competing Senate bill sponsored by Sen Charles Grassley (R-IA) — the SMART Cocaine Sentencing Act, S.4116 – that “maintains a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity.” Milton wrote. “Our sense of urgency is driven by the reality that if we do not pass [EQUAL] by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

The weird: Two weeks ago, the Senate Judiciary Committee whiffed for a second time on approving the nomination of the seven candidates for the Sentencing Commission. At the beginning of last Thursday’s work session, Durbin said, “We have decided on a bipartisan basis to hold over for a second time the Sentencing Commission nominees while members are in… we’re going to try to find a path for all seven nominees to move together, which I think would be a positive thing and maybe even historic around here.”

The terse statement suggested some substantial pushback on one or more nominations. Laura Mate, who signed a 2014 letter to Congress supporting more reasonable mandatory minimums for sex offenders, and former federal judge John Gleeson, whose criticism of the Guidelines while on the bench was legendary, were both pilloried by several Republicans during their June nomination hearing.

Nevertheless, last week the Committee finally got the job done. It advanced the slate of seven nominees to the floor of the full Senate for its approval, bringing the Commission one step closer to being able to amend the Sentencing Guidelines.

noquorum191016The USSC has been unable to implement the First Step Act or, for that matter, do anything else after losing its quorum just as the bill was enacted in December 2018.

The Senate Judiciary Committee voted to send to the full Senate four Democrat and three Republican candidates nominated by President Joe Biden to revitalize the Commission.

Committee chairman Durbin told the Committee that while he had reservations about some nominees, it was important to move them forward as a group to “enable the commission to get back to doing its work.” He said, “[T]he Sentencing Commission has not had a quorum for three years. With no quorum, the Commission—created in 1984 and tasked by Congress to promote transparency and consistency in sentencing—has been unable to update the sentencing guidelines to provide guidance to judges. Today, we make an important step to rectify the situation… [and] enable the Commission to get back to its work.”

Cannabis Administration and Opportunity Act (S.4591)

Seeking Alpha, Senate Democrats-backed marijuana legalization bill coming next week (July 14, 2022)

Bloomberg, Pot Gets Senate’s Attention in Long-Shot Decriminalization Bill (July 14, 2022)

Politico, Schumer’s legal weed bill is finally here (July 21, 2022)

KYFR, North Dakota lawmakers, advocates push for equal sentencing in federal cocaine and crack crimes (July 12, 2022)

Senate Judiciary Hearing (July 14, 2022)

Mississippi Free Press, ‘Model Inmate’: Father Finally Has Crack Sentence Reduced as U.S. Senate Shelves Reform Bill (July 22, 2022)

Independentcloud.com, Cannabis Bill Senate: US Democrats Demand Senate Pass Its Own Marijuana Banking Bill (July 21, 2022)

Reuters, US Senate committee advances nominees to restock sentencing panel (July 21, 2022)

Sen Richard Durbin, Judiciary Committee Advances Ten Nominees, Including Two Judicial Nominees, Seven Sentencing Commission Nominees, And An Assistant Attorney General (July 21, 2022)

– Thomas L. Root

Could EQUAL Act Be Rolled Into Pot Reform? – Update for June 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.

IS EQUAL ACT MERGING WITH MARIJUANA REFORM?

marijuana160818An unconfirmed report published yesterday suggests that the EQUAL Act may be merged into the Senate’s marijuana reform package.

Marijuana Moment reported that

Interestingly enough, a non-marijuana item might also be part of the deal in the works: the EQUAL Act to end the federal sentencing disparity between crack and powder cocaine, which experts say has exacerbated racial disparities in the criminal justice system. That legislation has passed the House in standalone form and has substantial bipartisan support in the Senate.

The proposal (still in preliminary talks) focus on putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  The outline includes banking and criminal justice reforms on marijuana, but also “there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform,” Marijuana Moment reported

Last week, the Washington Times reported on an EQUAL Act rally at the Capitol, noting that EQUAL “passed the House 361-66, but advocates fear the bill will get sidetracked in a busy summer session before senators head home to hit the campaign trail in the fall.”

crackpowder160606Reps. Ed Perlmutter (D-CO) and Dave Joyce (R-OH) publicly disclosed at a conference last week that discussions are underway about crafting a bipartisan cannabis package that includes expungement. “These talks are very serious,” Marijuana Moment quoted a criminal justice reform source as saying. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur.”

Marijuana Moment, New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes (June 13)

Washington Times, Equal Act backers rally for Senate action on new drug-sentencing norms (June 8, 2022)

Marijuana Moment, New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes (June 10, 2022)

– Thomas L. Root

Criminal Justice Reform Bottled Up in Fractious Senate – Update for June 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.

SENATE CRITICIZED FOR INACT… – SQUIRREL, SQUIRREL!

Readers all seem to wonder why the EQUAL Act (S.79), a bill that would finally equalize punishment for crack cocaine and powder cocaine offenses, could pass the House of Representatives with an 85% vote last year and have over 60% support in the Senate (and support of the leadership), but still be sitting around with no vote in sight.

grid160411After the House passed EQUAL last fall, Ohio State University law professor Doug Berman wondered in his Sentencing Law and Policy blog whether the Senate would “move quickly to finally right a 35-year wrong?”

Nope. In a commentary last week, FAMM President Kevin Ring explained why thousands of families are still waiting for the Senate to act:

The Senate is broken. And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake…

So what’s the problem? Senators may have to vote on amendments that get offered to the bill and they are scared. They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis. In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments. But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber. The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.

Add to that explanation another one. Just like I can easily distract my dog by shouting, “Squirrel, squirrel!” and pointing in some direction, the Senate is easily distracted. The Ukraine crisis needs a big weapons bill, a mass shooting needs a debate on gun control, a Supreme Court decision leak needs a spate of bills on abortion… every crisis in the headlines disrupts Senate business.

squirrel220606A bill to fund the fight against the next COVID wave, battles over gun control and abortion (sure to be fired up with Supreme Court decisions on both due this month), and the fact that a third of senators are up for re-election, all make focus on EQUAL – which should be an easy lift – difficult.

Berman said last week, “I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be.”

Of all the criminal justice reform measures before Congress – including the First Step Implementation Act (S. 1014), the Safer Detention Act (S. 312), the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – EQUAL is the one closest to the finish line. If EQUAL can’t get to a final vote in the Senate, it’s hard to imagine any other measure getting to the President’s desk, either.

Medium, The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction (June 2, 2022)

Sentencing Law and Policy, Hoping it is not yet time to give up on passage of the EQUAL Act (June 2, 2022)

PBS, Congressional stalemate makes a quick compromise on COVID funding unlikely (June 1, 2022)

– Thomas L. Root

Congress Races Glacier, And Glacier Wins – Update for May 31, 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.

NOTHIN’S HAPPENIN’ HERE

Every week, I get a lot of emails from people like this one this morning:

“I am sorry, I know that everyone sends you messages asking for information about the bills in the house and senate, but i have to ask.  Have you heard anything about the prohibiting punishment of acquitted conduct act?”

People are always just wanting “an update” on bills pending (or on bills they just imagine are pending) in Congress.

nothing160321My answer is always the same: if anything is going on with one of these bills, I will cover it in the newsletter. If I haven’t mentioned it, nothing’s going on. 

Like last week. Nothing went on last Monday. And after Tuesday’s horrific shooting in a Uvalde, Texas, school, Congress’s focus turned to anguished sound bites and to what feel-good knuckle-headed legislation might be passed in response. Think I’m over-reacting?  Ask “One-Door” Ted Cruz. Or “High-Caliber” Joe Biden.

But, as for criminal justice reform, here’s an update on legislation:

EQUAL Act: Senate Majority Leader Chuck Schumer held a news conference in front of the Second Circuit courthouse in New York City to call on lawmakers to support the EQUAL Act (S.79), which would end the sentencing disparity between crack and powder cocaine that has had a disproportionate effect on black defendants.

In September, the House passed the bill 361-66, which ends a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. Since then, the Senate Judiciary Committee has approved the bill, sending it to the Senate floor for a vote.

The New York Daily News reported that Schumer, “who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor.”

Senators Rob Portman (R-OH) and Cory Booker (D-NJ) are sponsoring the bill, which has 21 cosponsors, 11 of the Republican. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer said last Monday. “We want to get this done as soon as we can.”

But all is not roses. At the end of April, Sen Charles Grassley (R-IA) introduced the SMART Cocaine Sentencing Act (S.4116), which cuts the crack-powder ratio to 2.5 to 1 and puts retroactivity decisions in the hands of the Dept of Justice. While the bill only has three cosponsors, it is generally seen as being intended to be a bargaining chip, to be used during floor debate to water down EQUAL.

Marijuana: Nearly every House Democrat and three House Republicans voted in April to pass the MORE Act (H.R. 3617). It would decriminalize marijuana, something 27 states and the District of Columbia have already done.

nothing190906

Meanwhile, expectations are wavering over a marijuana legalization bill in the Senate. Most of the pressure for cannabis reform is coming from state financial regulators, who last week urged Congress to pass marijuana banking reform as part of a large-scale manufacturing bill that’s currently being finalized in conference committee. In a way that would be helpful, because marijuana criminal reform has been held hostage to the problems state dispensaries have in accessing the banking system.

Experts predict, however, that the MORE Act won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who has said that he is unsure about legalizing adult-use marijuana.

Much of the slowdown in criminal justice reform results from violent crime rates nationwide, which have cooled the reformers’ ardor. Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.

nothingcoming181018Guns: Note to people who email me asking when Congress is going to reform the 18 USC 924(c) possession of a gun during drug and violent crimes statute. The rising violent crime rates – not to mention mass shootings in Buffalo and Uvalde, Texas, pretty much guarantee that no one is going to call for changes in 924(c) that will benefit defendants.

New Legislation: One bill introduced last week is good for federal prisoners. The Family Notification of Death, Injury, or Illness in Custody Act of 2022 (already introduced in the House as HR 6296), would require the DOJ to establish guidelines for the Bureau of Prisons and state correctional systems to notify families of incarcerated people if their loved one has a serious illness, a life-threatening injury or if they die behind bars.

The bill’s introduction in the Senate last Thursday comes more than two years after the Associated Press reported that BOP had ignored its internal guidelines by failing to notify the families of inmates who were seriously ill with COVID. The legislation – introduced by Sens. Jon Ossoff, D-Ga., and John Kennedy, R-La. – is “the latest step by members of Congress to further oversight of the beleaguered federal prison system, which has lurched from crisis to crisis in recent years,” AP reported.

New York Daily News, Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’ (May 23, 2022)

S.4116, SMART Cocaine Sentencing Act

Gray DC, Cannabis legalization remains stalled on Capitol Hill (May 26, 2022)

Vigour Times, How Criminal Justice Reform Fell Apart (May 26, 2022)

AP, Senate bill would set up medical notification to inmates’ kin (May 23, 2022)

– Thomas L. Root

EQUAL Act May Be In Trouble – Update for May 2, 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.

SUDDENLY, CRIMINAL JUSTICE LEGISLATION IS IN TROUBLE

Just last Friday, I mused that the EQUAL Act (S.79) – the much-heralded legislation that would finally make penalties for cocaine distribution identical regardless of the form the cocaine took (cocaine base or cocaine powder) – might have a little competition.

russiantank220502Now, that seems to be like predicting the Russians might run into a little delay on their way to Kyiv.

On Friday, it looked like a few Republican senators might want to leverage their SMART Cocaine Sentencing Act to win a few amendment concessions before EQUAL passes. Now, the problem seems much more extreme than that.

At the end of last week, The New York Times reported, “with control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of [the EQUAL Act] is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters… Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.”

You may recall that on Thursday, Senators Roger Wicker (R-Mississippi), Charles Grassley (R-Iowa), Mike Lee (R-Utah) and Lindsey Graham (R-South Carolina) announced SMART, a bill that would reduce the current 18:1 crack-to-powder ratio to 2.5:1 instead of EQUAL’s 1:1.

(If Lindsay Graham’s name seems familiar, maybe that’s because he is also a co-sponsor of the EQUAL Act).

But diddling with the ratio is not all that SMART does.  For people already convicted under 18:1, there would be no retroactivity unless the Attorney General “certified” to the court that the sentence should be reduced. Mind you this is the same Dept. of Justice that rejects thousands of clemency petitions before they ever reach the White House and fights hammer and tong against any inmate seeking First Step Act Section 404 reductions.

scrooge220502Imagine nominating Scrooge to plan Santa Claus. Same thing.

Grassley argued last week that the EQUAL Act does not account for the differences in recidivism rates between the two types of cocaine offenses. He said crack offenders reoffend at a 60.8% rate while powder cocaine offenders are at only 43.8%, and crack defendants are the most likely drug offenders to carry weapons.

The obvious rejoinder is that if the crack offenders are carrying weapons, there are Guidelines enhancements (such as § 2D1.1(b(1)) and even separate statutory offenses that do a much better job of targeting the people with the guns than punishing one class of drug offenders for the probability that the person has a weapon. As for recidivism, the Guidelines already increase sentencing ranges based on the defendant’s criminal history. Arguing that a crack offender must be punished more severely than a cocaine powder offender because he or she is statistically more likely to commit a crime in the future has a certain “Minority Report” aura to it.

FAMM President Kevin Ring blasted SMART on Twitter for

INCREASING the # of people who will be subject to man mins for powder while reducing the # subject to man mins for crack. Remember, no member had suggested powder sentences were too low until the EQUAL Act gained steam.” Plus, SMART “requires the Attorney General to certify every request for retroactive application of the new penalties. This is unprecedented and absurd. No retroactive changes in recent history – by the Commission or Congress – ever required AG certification.

But beyond the weird provisions of SMART is the fear that it may spell the death of EQUAL. Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog, worried that “the fact that the EQUAL Act has not become law already makes me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.”

“The time for negotiation has passed, and it passed a long time ago,” said Jason Pye from the Due Process Institute. “The EQUAL Act is an exercise in bipartisanship, which is more than I can say for Senator Grassley’s bill.”

Meanwhile, expectations are wavering over the marijuana legalization bill that Senate Majority Leader Charles Schumer (D-NY) promised would be introduced in April. Now lawmakers have pushed the timeline back to later in the summer as continued debate threatens the bill’s success.

senatemarijuana220412Schumer said he wanted to give senators time to debate certain provisions. The Senate majority leader said he is reaching across party lines to gain support for the bill, but experts predict he won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who last month told The Hill that is he unsure about legalizing adult-use marijuana.

Last month, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act passed the House with a near-party line vote that included only three Republicans. MORE is not expected to pass the Senate.

As the November midterms approach, it is likely that criminal justice will become even more of a political game, with federal prisoners as the football.

The New York Times, Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress (April 29, 2022)

S.__ (no number yet), SMART Cocaine Sentencing Act

Sen Charles Grassley, Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend (April 28, 2022)

Politico, Huddle: Freedom Caucus at a crossroads (April 29, 2022)

Twitter, Kevin Ring, Current Crack-Powder Disparity Is Unjustifiable (April 28, 2022)

Sentencing Law and Policy, GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act (April 29, 2022)

The Paper, Cannabis News (April 28, 2022)

– Thomas L. Root

EQUAL Act Runs Into Some Competition in Senate – Update for April 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.

BACK TO WORK FOR CONGRESS

Congress is back in session after Easter/Passover/Ramadan break, and the drumbeat continues for the EQUAL Act, even as insurrection against the favored bill brews.

crackpowder160606As noted earlier this week, the DOJ threw a plug in for EQUAL as part of its PATTERN report to Congress. It wasn’t alone. Last week, The Hill editorialized that “April is Second Chance Month and an opportunity to think deeply about the real purpose of incarceration — and of penal systems more broadly. Is the purpose to dehumanize those who transgress? Or is it to protect communities and preserve or restore justice within them?… The EQUAL Act… addresses the sentencing disparity in our federal justice system involving penalties for crack and powder cocaine offenses, which has resulted in unintentional racial disparities and significantly higher federal prison populations. The law was intended to reduce the harm of crack cocaine possession, distribution and consumption. The validity of its original intention may be debated, but it has been proven to have unacceptable consequences.”

Writing in the Washington Examiner, former congressman Doug Collins said, “it’s no surprise that law enforcement is spearheading” the EQUAL Act… Roughly 90% of those serving time for crack offenses at the federal level are black, which means they serve vastly longer prison sentences than those convicted of powder cocaine offenses, even though the substances are chemically similar and equally dangerous. According to the country’s most respected law enforcement leaders, eliminating this disparity would help police officers build trust with communities of color, especially in urban areas where law enforcement finds it difficult to cultivate sources to investigate murders, shootings, and other violent crimes.”

Screwup190212However, proving that nothing in this world is such a slam-dunk that Congress cannot screw it up, the Start Making Adjustments and Require Transparency in Cocaine Sentencing Act (shorthand, “SMART Cocaine Sentencing Act” – an obvious competitor to the EQUAL Act – was introduced in the Senate yesterday. SMART, sponsored by Senators Roger Wicker (Mississippi), Charles Grassley (Iowa), Mike Lee (Utah) and Lindsey Graham (South Carolina), all Republicans – reduces the current 18:1 crack-to-powder ratio to 2.5:1 instead of EQUAL’s 1:1.

The nasty part of SMART is that for people already convicted under 18:1, there would be no retroactivity unless the Attorney General “certified” to the court that the sentence should be reduced. Given the Dept. of Justice’s traditional antipathy to the many prisoners seeking First Step Act Section 404 reductions, this is yet another example of turning the keys to the henhouse over to the fox.

Sen. Grassley explained the thinking behind SMART:

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses. This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses. According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent. Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses.

The MORE Act, which would decriminalize marijuana, has passed the House of Representatives. Whether it will pass in the US Senate, where all 50 Democrats and at least 10 Republicans would need to support it, is unclear. Maritza Perez, Director of National Affairs at Drug Policy Alliance, told The Grio last week it will be a “hard sell.” As reported, the Senate will be considering its own bill that Perez said focuses on less on decriminalization and more on a regulatory and tax framework for the sale and use of cannabis.

White House press secretary Jen Psaki said a week ago Wednesday that President Biden “remains committed” to honoring his campaign pledge to release “everyone” in federal prison for marijuana, claiming that he believes “no one should be in jail because of drug use.”

marijuanagrow220429Psaki did not provide a timeline. “I don’t have an update here. We are continuing to work with Congress. But what I can say on marijuana is we’ve made some progress on our promises. For instance, the DEA just issued its first licenses to companies to cultivate marijuana for research purposes after years of delay during the prior administration… Additionally, the president’s continuing to review his clemency powers, which is something he also talked about on the campaign trail and he certainly remains committed to taking action on.”

Of course, shortly after this, the President did grant some clemencies, although relatively few to marijuana offenders. More clemencies have been promised, albeit vaguely.

The Hill, Justice for some is no justice at all — we must change our criminal justice system (April 22, 2022)

The Grio, Advocates say legalizing cannabis would restore justice for Blacks, but can Washington get it done? (April 20, 2022)

Washington Examiner, Take the next step on the First Step Act (April 20, 2022)

NY Post, Biden ‘committed’ to freeing inmates with marijuana convictions, Psaki says (April 20, 2022)

S.__ (no number yet), SMART Cocaine Sentencing Act

Sen. Charles Grassley, Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend (April 28, 2022)

– Thomas L. Root

EQUAL Act But Unequal Reform? – Update for April 21, 2022

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

EQUAL ACT MAY BE ALL WE GET

Congress was recessed all last week and for part of this one, so no legislative progress was made on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or – for that matter – anything else. But nothing can stop politicians from talking, even during vacations.

crack-coke200804The good news is that all of the talk about EQUAL – which makes crack sentences equal to cocaine powder sentences – suggests it has the support for passage. The only question is when Senate Majority Leader Chuck Schumer (D-NY) will bring it up for a vote. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

The bad news is everything else. Politico ran an analysis last week reporting that Sens Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrat and Republican on the Senate Judiciary Committee, are still talking about a merger of bills such as the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step Act, Durbin and Grassley are calling a Second Step Act. 

“But both senior senators acknowledge it’s not a glide path forward,” Politico said, “particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

Jackson was blasted last month by a few Republican senators for being too soft on sentencing child sex abuse and drug offenders. “One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations,” Sen. Ted Cruz (R-TX), who led the charge against Judge Jackson, told CNN. Any judges looking for future promotions “are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes.”

snake220421[Editor’s note: While it is correct that Cruz has been described by one conservative columnist as being “like a serpent covered in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats,”  some maintain that there are good snakes in Texas (but Sen. Cruz is not on their list).]

Far from the only effect, the Jackson hearings have also “dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley said in a brief interview. He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”

Meanwhile, Durbin said he’s concerned about a Second Step Act’s prospects for passage, ‘particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

Durbin and Grassley both think a Second Step Act is needed to implement sentencing changes in the First Step law by making them retroactive, midterms are coming up in a little more than 6 months and “campaign-season politics surrounding criminal justice reform threaten broader GOP support. While some lonely voices are calling for passage of such a bill, with Democrats in control of the White House and both houses of Congress, expect a cacophony of Republicans claims that Democrats are to blame for rising crime rates. That should make sentencing changes that much harder, Politico said.

Senate aides on both sides of the aisle warn that EQUAL could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Even Grassley, who is not a co-sponsor but is unapologetically pro-reform, has outlined concerns about whether EQUAL could garner enough Republican support in the Senate to pass.

cotton190502So the climate for criminal justice reform is getting ugly. Once, only Sen Tom Cotton (R-Ark) (who calls First Step Trump’s biggest mistake) demanded longer sentences. Last week, mainstream Newsweek magazine ran an opinion piece claiming that “America, in the year 2022, does not suffer from an over-incarceration problem. On the contrary, we suffer from an under-incarceration problem.” The column called on Congress to end “the jailbreak of slashed sentences and the broader civilizational suicide of the ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act, (H.R.3617)

– Thomas L. Root

A Tale of Two Bills (Part 1 – Fixing a ‘Crack’ in the Law) – Update for April 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.

EQUAL ACT PICKING UP STEAM…

capitol160110Last Monday, Sen. Roy Blunt (MO) became the 11th Republican to sign onto the EQUAL Act (S.79/H.R.1693), joining a spectrum of Republicans from Sen. Lindsay Graham (SC) to Sen. Susan Collins (ME) adding their names to the bill.

The significance of Blunt’s co-sponsorship is that with full Democrat support for the measure and at least 11 Republican votes, EQUAL’s passage is assured if it is put up to a vote. The legislation was approved by the House of Representatives last fall.

If it becomes law, the EQUAL Act will make statutory punishment for crack cocaine no different than for powder cocaine. Currently, crack is penalized at an 18:1 ratio, meaning that while a half kilo of coke powder carries a five-year mandatory minimum, only 28 grams of crack is needed to get a defendant the same sentence. The EQUAL Act is fully retroactive, meaning that thousands of current sentences involving crack could be reduced.

lineofcoke160803The question always is when – or if – the Senate will bring the bill up for a vote. That decision lies with Senate Majority Leader Chuck Schumer (D-NY). Axios reported that Schumer – who also is an EQUAL Act co-sponsor – met last Tuesday with advocates and formerly incarcerated leaders, where he described the legislation as “a priority.” He has given no indication of timing on EQUAL, but he told Axios last week he does plan to bring the legislation to the floor.

The Hill said last Wednesday that EQUAL’s having collected 60 sponsors is a “threshold that is expected to trigger a hearing in the coming weeks.” Politico says the measure “may already have the votes to get to President Joe Biden’s desk.”

The Congressional Black Caucus sent Schumer a letter last Monday urging quick passage of EQUAL. The letter said in part

We write in support of bringing the EQUAL Act (H.R. 1693/S. 79) to the Senate Floor for consideration as soon as possible. It would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law. According to a recent analysis from the U.S. Sentencing Commission, approximately 827 individuals would benefit from the prospective section of the bill each year, and 7,787 offenders in BOP custody would be eligible to seek a modification of their sentence based on the retroactive section. In total, the EQUAL Act will reduce excessive prison time by 67,800 years, and 91% of the individuals who will get this critical relief are Black.

optimism220411Politico optimistically reported last week that “other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.”

We’ll see about some of that tomorrow…

Axios, Congress closes in on cocaine sentencing disparity (April 6, 2022)

The Hill, Confirmation combat can’t crush bipartisan criminal justice reform (April 6, 2022)

Politico, A major group of House Democrats is asking the Senate to end a policy widely considered racist: sentencing disparities between crack and powder cocaine (April 5, 2022)

Hakeem Jeffries, Letter to Schumer and Durbin (Apr 5)

– Thomas L. Root

News Briefs from Capitol Hill – Update for April 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.

CONGRESSIONAL SHORT TAKES…

House OKs Prohibition on Using Acquitted Conduct in Sentencing: Last week, the House passed H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by an overwhelming 405-12 vote.

Co-sponsor Steve Cohen (D-TN), said, “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Sens Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

sliceofpie220407The bill actually does very little. If a federal defendant goes to trial and is acquitted on one or more counts, but is convicted on at least one count, the sentencing judge may nevertheless take into account all of the conduct for which the defendant was acquitted in setting a sentence.  All the judge has to do is conclude that the government proved the defendant committed the acquitted acts by a preponderance of the evidence, a lower standard than the standard for conviction, which is “beyond a reasonable doubt.”

So the legislation will benefit the portion of the 6% who go to trial who are not acquitted of all charges and who are not convicted of all charges.  That’s a pretty small slice. It will not help people whose sentences are affected by charges that the government dismisses or, even more common, accusations of relevant conduct which are never charged to begin with.

And, no, it will not be retroactive. Still, any nudge of sentencing procedure toward sanity is welcome.

H.R. 1621, Prohibiting Punishment of Acquitted Conduct Act of 2021

Steve Cohen, Congressman Cohen Speaks in Favor of and Votes for His Bill Prohibiting the Consideration of Acquitted Conduct in Sentencing (Mar 28)

Sen Hawley Introduces Bill to Slam Judge Jackson and CP Defendants: Who saw this coming?

kittyporn170420In the wake of his criticism of Judge Ketanji Brown Jackson for being soft on child pornography defendants, Sen Josh Hawley (R-MO) has week introduced a bill to require a minimum 5-year sentence on people possessing child pornography and to require judges to sentence within the Guidelines for any child pornography offense.

Rep Ken Buck (R-CO) introduced companion legislation in the House.

A Democratic Party opponent to Hawley said of the bill, “We can count on Senator Hawley to find the lowest common denominator to draw attention to himself. The independent ABA’s review board found this line of questioning to be misleading and multiple fact checkers have debunked the allegations regarding sentencing. Choosing this time to introduce this legislation is purely for attention and designed to appeal to conspiracy.”

S.3951, Protect Act of 2022

H.R. 7263, Protect Act of 2022

Washington Times, GOP introduce bill to beef up child porn sentences after Judge Jackson’s confirmation hearing (March 30, 2022)

KYTV, Springfield, Missouri, Missouri U.S. Sen. Josh Hawley introduces bill over sentences for child porn offenders (April 2, 2022)

crack211102FAMM Issues EQUAL Act Analysis: FAMM released an analysis last week urging the Senate to approve the EQUAL Act reporting that if the bill becomes law, it will reduce sentences for people already serving time for crack offenses by an average of just over six years, cutting 46,500 years off sentences. FAMM estimates that 91% of people benefitting from EQUAL Act are black.

FAMM, The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences (March 31, 2022)

– Thomas L. Root