Tag Archives: EQUAL Act

House Passes Marijuana Decriminalization – Update for April 4, 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.

HOUSE APPROVES MARIJUANA REFORM
Who needs "March Madness" when you have "reefer madness."
Who needs “March Madness” when you have “reefer madness?”

The House of Representatives on Friday passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act (H.R. 3617) – sponsored by House Judiciary Chairman Jerrold Nadler (D-NY) — by a 220-204 margin. The vote fell largely along party lines with only three Republicans supporting the measure and two Democrats opposing it.

H.R. 3617 decriminalizes marijuana, expunges the records of people convicted of federal cannabis offenses, and requires resentencing in some cases. It provides that any marijuana conviction will be vacated, and existing sentences modified to eliminate marijuana amounts from drug calculations. The only catch is that any sentence including a Guidelines § 3B1.1 aggravating role will be ineligible.

The Congressional Budget Office estimates that thousands of current inmates would be released early. In the future, decriminalization also would reduce the number of people in federal prisons and the amount of time they serve. CBO estimates that over the 2022-2031 period, H.R. 3617 would reduce time served by current and future inmates by 37,000 person-years.

CBO’s analysis accounts for time served by offenders convicted of marijuana-only crimes and time served by people convicted of offenses in addition to a pot offense. The analysis says the MORE Act would reduce the Federal Bureau of Prisons’ costs by reducing both the number of prisoners and the amount of time they serve. CBO estimates that the provision would result in net savings of about $800 million over the 2022-2031 period.

marijuana160818Passage of MORE is one of several pieces of legislation that underlines the shift in Congress’s attitude — a change that has come about in part because of the way past drug laws have disproportionately hit minority communities. “This Congress represents a sea change,” said Rep. Earl Blumenauer (D-Oregon), a co-chair of the Congressional Cannabis Caucus.

The House passed the EQUAL Act last fall by a margin of 361-66. EQUAL eliminates the federal disparity in prison sentences for crack and powder cocaine offenses. A majority of the House GOP overall joined all Democrats in support.

Recently, Sen Richard Burr (North Carolina) became the 10th Senate Republican to back EQUAL, paving the way for likely passage in the upper chamber. House Majority Leader Chuck Schumer (D-NY) and Sen Joe Manchin (D-WV), a frequent centrist swing vote, also signed on to the bill in recent days.

“I think they understand we’ve got to take a more innovative path. We need to understand addiction. We can’t just incarcerate our way out of these problems. And we sure can’t continue to turn a blind eye to an egregious injustice, like this crack-powder disparity,” said Holly Harris, president of the Justice Action Network.

The lower price of crack cocaine means that historically it has been more easily accessible to people in marginalized lower-income communities, compared to powder cocaine more prevalent in the suburbs.

marijuana-dc211104A nearly identical version of the MORE Act passed in 2020, but it stalled in the Senate. It passed through the sponsor’s panel again this session in September. Now the action moves to the Senate, where leadership is separately preparing to introduce a legalization bill. It remains unclear whether MORE will receive a Senate vote. The White House has not yet issued a statement on whether President Biden supports the legislation. A group of Senate Democrats, including Majority Leader Charles E. Schumer (N.Y.), Sen Cory Booker (N.J.) and Sen Ron Wyden (Oregon), is expected to release draft marijuana legislation later this month.

“We’ve been here before,” Nadler said during a press briefing following the vote on Friday. “Unfortunately, the Senate failed to act. Sometimes I think we’d be better off if we didn’t have a Senate.”

Marijuana Moment, House Approves Federal Marijuana Legalization Bill For Second Time In History (April 1, 2022)

Congressional Budget Office, Estimated Changes in Direct Spending and Revenues Under H.R. 3617, the MORE Act (March 28, 2022)

The Hill, House poised to pass bill legalizing marijuana (March 28, 2022)

H.R. 3617, MORE Act

Marijuana Moment, Lawmakers And Organizations React To Federal Marijuana Legalization Bill’s House Passage (April 1, 2022)

Washington Post, House passes bill decriminalizing marijuana; Senate fortunes unclear (April 1, 2022)

– Thomas L. Root

EQUAL Act Now Has Path To Passage – Update for March 28, 2022

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

EQUAL ACT AND MORE ACT MOVING FORWARD IN CONGRESS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

EQUAL Act May Yet Make It – Update for March 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.

DESPITE HEADWINDS, EQUAL ACT MAKING SOME PROGRESS

Those who keep emailing me asking about rumors that Congress has just passed this or that bill favoring inmates should take a deep breath and consider how hard it is for Congress to pass legislation that almost everyone seems to be for. The biggest criminal-justice tease in the current Congress has been the EQUAL Act – which would eliminate federal sentencing disparities between crack and powder cocaine – that passed the House of Representatives overwhelmingly last September but has gone nowhere in the Senate.

Last week, Sen. Jerry Moran (Kansas) became the ninth Republican Senator to sign on as an EQUAL Act co-sponsor. That’s crucial: the bill can count on 50 Democratic Senators voting for it, but in the Senate, a controversial bill needs 60 votes to avoid a filibuster that would block a vote. Sen Moran locks in a 59th vote for EQUAL, increasing the odds that the Senate will bring it to a vote this year.

crack-coke200804EQUAL will make a gram of crack – now considered equal to 18 grams of powder – equal to a gram of cocaine. The change would be retroactive and would likely lead to a dramatic reduction in crack sentences across the board.

When might the EQUAL Act be voted on? Congress doesn’t keep a schedule like that. Often, a decision by leadership to bring a bill to a vote is announced only days or hours in advance and is driven by Congressional perception of public sentiment.

Sentiment might be going in the right direction. Last week, The Nation (which is considerably left of center politically) wrote that “just a few decades ago, the left and the right, politicians and the public, universally embraced the criminalization of drug use. But a new consensus has emerged.”

lifeline210421To the extent public sentiment is driven by facts – often an iffy proposition – a detailed study of federal life and “de facto” life sentences for drug offenses published earlier this month by The Ohio State University Drug Enforcement and Policy Center found that between 1990 and now, “crack cocaine was the most common drug type associated with life sentences imposed for drug trafficking… (48%), followed by powder cocaine (26%) and methamphetamine (14%).” Plus – and this may be the statistic that gets EQUAL passed – the study found what Filter magazine called “stunningly awful racial disparities. Federal life sentences are practically reserved for defendants who are black (62.4 %) or Hispanic (22%). Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.”

The study also found that defendants who went to trial accounted for what the study called an “astonishing 72% percent of those sentenced to life or de facto life for drug trafficking.”

The phenomenon is usually called the “trial penalty.” I have some doubts about the amount of credence given to this statistic. It may be that people who went to trial were punished with life sentences they otherwise would have avoided without trial. But it is as likely that people whose Guidelines sentencing range – especially in the pre-Booker period when Guidelines sentencing ranges were mandatory – faced life whether or not they pled guilty. If a defendant is bound to get a life sentence whether he pleads guilty or not, he’s got nothing to lose and a chance – however slight – the jury might be crazy enough to acquit. Under those circumstances, the potential sentence drives the trial decision instead of the other way around.

life161207A more troubling statistic to my thinking was this finding: just five of the 94 federal districts – all three Florida districts, one in Virginia, and the District of South Carolina – accounted for 25% of life sentences imposed for drug trafficking during the study period. This is a powerful disparity argument for those sentenced in those districts, although unfortunately, it must be made to the very courts that are the worst offenders.

The study is right: crack sentencing has been a disaster for any notion of justice.

No one knows when the EQUAL Act will come to a vote, if it does at all. But a ninth Republican to sign on as a co-sponsor is a promising sign that common sense might prevail.

WIBW-TV, Moran becomes ninth GOP Senator to cosponsor bill equalizing sentences for crack, powder cocaine (March 18, 2022)

The Nation, How the Drug War Died (March 19, 2022)

Ohio State University, Drug Enforcement And Policy Center, Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020 (March 3, 2022)

Filter, Federal Life Sentences for Drugs: Unconscionable and Massively Biased (March 9, 2022)

– Thomas L. Root

Beware the Ides… and the Rumors They Bring – Update for March 15, 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.

C’MON, PEOPLE…

caesar220315The Old Farmer’s Almanac reports that the full moon doesn’t happen until the end of the week, so I am unsure what accounts for the email box blowing up with rumors straight from inmate.com. Perhaps the Ides of March? They sure didn’t work for Julius Caesar.

Email 1: “Have you heard any talk about the FBOP or DOJ giving an extra 54 days good time for any reason. From what I understand nothing new has been done but inmate.com is spreading rumors and would like to hear from the expert.”

Email 2: “There is a rumor going around that the bop is giving an extra 54 days to all inmates come March 14 and that all inmates are getting a year off their sentence due to the covid pandemic. Is there any truth to this rumor?”

Email 3:  “How true is it that in some institutions they are giving 10 months of your sentence due to covid-19 lockdowns?”

bidenleprechaun220315Answer: Nope, nope, nope… President Biden is more likely to appear at a press conference dressed in a leprechaun suit than the government is to grant extra good time for COVID. First, neither the Dept of Justice nor the Federal Bureau of Prisons has the power to award more good-conduct time. The 54 days a year is set by Congress in 18 USC § 3624(b)(1). The rumor that either agency will do so is dead wrong.

Second, none of the bills getting any consideration by House or Senate committees proposes more blanket good time because of COVID or for any other reason.

Email 4: “What RIGHTS ‘got’ passed IN CONGRESS last night?”

Email 5:  “I heard Congress is supposed to be voting on something in late Spring, sometime in June, do you know if that’s Equal Act/Criminal Justice Reform?”

Congress votes on things all the time. It just passed a $1.5 trillion spending bill last week. But nothing has been passed on criminal justice reform by the entire Congress in its 14 months of existence. The House did pass the EQUAL Act – which would reduce punishments for crack cocaine to equal those for powder cocaine – but that bill’s stalled in the Senate. Right now, nothing is scheduled for floor time in the House or Senate on criminal justice reform (although that does not mean something won’t be in the future).

Time magazine last week ran a mostly complimentary article about Biden’s criminal justice accomplishments. But even it admitted that his efforts have fallen short: “The President said that he would revamp clemency power and use it for non-violent offenders and those incarcerated on drug crimes; Biden has not commuted or pardoned anyone so far. The US Sentencing Commission, which helps govern and address disparities in federal cases, currently has six open seats; Biden has not nominated anyone for the commission. Reducing the prison population was supposed to be another priority in Biden’s administration; there has not been much follow-through on that: The prison population is at around 1.8 million and while there was a period of decarceration at the start of the COVID-19 pandemic, that has since stalled.”

The article mentioned Biden’s failure to push the George Floyd Policing Act through the Senate, but did not even note the stalled  EQUAL Act, MORE Act, or First Step Implementation Act – all of the highest-profile reform bills now pending in Congress.

grid160411With the midterm elections coming up this fall – where all of the House of Representatives and one-third of the Senate is up for re-election – crime is going to be a major issue, and the Democrats are nervous. That usually means that the kinds of issues important to federal prisoners – retroactivity, EQUAL Act, marijuana reform, fixing First Step – are unlikely to be brought to a vote, because incumbents don’t want to take a stand they might have to defend on the hustings.

Finally, Email 5:  “Over 65 yrs old can release immediately, is it true?”

Oh, c’mon, people…

Time, Criminal-Justice Reform Was a Key Part of President Biden’s Campaign. Here’s How He’s Done So Far (March 7, 2022)

Washington Post, In San Francisco and elsewhere, Democrats fight Democrats over where they stand (February 17, 2022)

– 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

Once Upon A Week Down In Washington – Update for February 28, 2022

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

THE POLS WERE BUSY LAST WEEK (OR NOT)

jackson220228Rocket Woman: Only 15 years ago, Ketanji Brown Jackson was an assistant public defender in Washington, DC. Six years later, she was a federal judge. Ten months ago, she was confirmed as a judge on the US Court of Appeals for the D.C. Circuit. Last week, her dizzying ride through the judiciary continued as President Joe Biden nominated her to take retiring Justice Stephen Breyer’s spot on the Supreme Court.

Picking Judge Jackson fulfills Biden’s promise to appoint a black woman to the high court. But she’s no token: Harvard Law (editor of the Harvard Law Review), a law clerk for Justice Breyer (whom she will replace), an attorney (and later vice-chair) at the U.S. Sentencing Commission, a public defender with one uncle who was a big-city police chief and another who was doing life on a federal drug charge (until he got clemency from Obama). Jackson would be the only Supreme Court justice with extensive Guidelines experience and the only one who ever did federal criminal defense work

There will be the usual bickering in the Senate leading up to her confirmation, but she’ll get confirmed: Sen. Charles Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee expressed enthusiasm about Judge Jackson’s support for the First Step Act during last spring’s hearing on her appointment to the Court of Appeals (although he didn’t vote to confirm). But three other Republicans did.  All it takes is 51 votes in the Senate: the Democrats will provide 50, and Kamala Harris will break the tie if a Republican does not defect. At least one will.

The appointment is good news for federal inmates. Judge Jackson is reliably liberal, and she knows federal criminal law. As a Sentencing Commission member in 2011, she was passionate about equalizing the sentences for crack and powder. The Wall Street Journal said yesterday, “Supreme Court nominee Ketanji Brown Jackson would, if confirmed, be the first justice in decades to have worked as a lawyer representing poor criminal defendants, a background that could add a new perspective to the high court’s deliberations.”

That makes her the equal (if not superior) to any of the other eight Justices.

More Demands for BOP Accountability: As I noted last week, the drums on Capitol Hill continue to sound for the BOP. Senate Judiciary Committee chairman Sen Richards Durbin (D-Ill), Sen Grassley, and California Sens Dianne Feinstein and Alex Padilla (both D) sent a letter to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco demanding the Justice Department turn over a pile of information about employee misconduct and procedures in place to stem sexual abuse.

Associated Press reported that the letter “is the latest illustration of increasing scrutiny of the scandal-plagued bureau following the AP’s reporting. Last week, the Senate launched a bipartisan working group to focus on the federal prison system, and lawmakers have been introducing legislation to increase oversight of the nation’s 122 federal prisons.”

In a case of bad timing, the letter was sent to the AG the same day James T. Highhouse, the former chaplain at FCI Dublin, pled guilty in San Francisco federal court to five felonies relating to his work at the FCI-Dublin female prison in the Northern District of California. Highhouse admitted he sexually abused a Dublin inmate multiple times and then lied to the FBI about it.

BOPsexharassment191209In a separate report, the AP said “whistleblower” employees of the BOP say high-ranking prison officials are bullying them for exposing wrongdoing and threatening to close FCI Dublin if workers keep reporting abuse, even as members of Congress say they’re being stonewalled in efforts to pry information from what AP calls “the beleaguered bureau.”

AP reported, “The Bureau of Prisons’ proclivity for silence and secrecy has endured, workers and lawmakers say, even after an Associated Press investigation revealed years of sexual misconduct at the women’s prison — the federal correctional institution in Dublin, California — and detailed a toxic culture that enabled it to continue for years.”

EQUAL Act: Thursday, leading New York civil rights and criminal justice organizations sent a letter to Senate Majority Leader Chuck Schumer (D-NY) pushing him to bring the EQUAL Act (S.79) to a vote within the next month.

crackpowder160606The EQUAL Act will “finally and fully eliminate the racially unjust federal sentencing disparity between crack and powder cocaine offenses, one of the worst vestiges of the failed War on Drugs,” Black Starr reported. In September, EQUAL passed in the House by a 361-66 vote, supported by everyone from the Freedom Caucus on the right to the Progressive Caucus on the left. In the Senate, where the legislation was introduced by Senator Cory Booker (D-NJ), EQUAL currently has seven Republican and five Democrat cosponsors.

Up in Smoke: The Wall Street Journal reported last Tuesday that because of the “tough midterm election and divisions in Congress, the Biden administration is sidestepping the politically sensitive issue of loosening marijuana laws, even as the idea has gained broad public support.

“More than half of U.S. states have legalized cannabis use for some purposes,” the Journal said. “Lawmakers have proposed decriminalizing marijuana… Those promoting changes include a diverse range of political figures… If someone like myself and a progressive like Alexandria Ocasio-Cortez can find some common ground, it begs the question, why hasn’t the president acted?” Rep Dave Joyce (R-Ohio), told the Journal. Joyce, who has worked on decriminalization of pot, said, “The solutions are there. It’s just a matter of political will.”

marijuanahell190918The problem isn’t political will, it’s political ‘won’t’.” Major legislation to decriminalize cannabis is stuck “amid opposition from some Republicans and some moderate Democrats. President Biden hasn’t acted on his own campaign-trail promises to decriminalize marijuana and expunge criminal records of users. The White House said cannabis policy is under study, but declined to comment further.”

The MORE Act of 2021 (H.R. 3617) passed the House in September, but seems dead in the Senate.

More than two in three Americans support legalizing marijuana, according to a 2021 Gallup poll, up from one-half a decade ago. Still, as The Skimm reported last week, “while Americans largely want to legalize weed, it’s not a top priority for them either. Forty-three percent of US adults also reportedly have access to rec weed. So, the urgency to get the federal gov involved may not be very high.” What’s worse, The Skimm said, Biden has remained blunt about marijuana: “He doesn’t believe in legalizing it… Biden said he wants more research on marijuana’s effects before changing his stance. But he has previously supported decriminalizing weed (a hot take for someone who helped spearhead the country’s war on drugs).”

New York Times, Biden Picks Ketanji Brown Jackson for Supreme Court (February 25, 2022)

SCOTUSBlog.com, In historic first, Biden nominates Ketanji Brown Jackson to Supreme Court (February 25, 2022)

Wall Street Journal, Judge Ketanji Brown Jackson Would Bring Rare Criminal-Defense Experience to Supreme Court (February 27, 2022)

Associated Press, Senators push Garland to reform prisons after AP reporting (February 23, 2022)

The Hill, Former federal prisons chaplain pleads guilty to sexually abusing inmate (February 2, 2022)

Associated Press, Whistleblowers say they’re bullied for exposing prison abuse (February 23, 2022)

Black Starr News, Schumer Pressed To Pass Bill Addressing Crack\Cocaine Sentencing Disparity (February 25, 2022)

S.79, EQUAL Act

Wall Street Journal, Push to Relax Marijuana Laws Hits Roadblocks (February 22, 2022)

MORE Act of 2021, H.R. 3617

The Skimm, Breaking Down the Buzz: Why the US Isn’t Puff, Puff, Passing Marijuana Legalization (February 23, 2022)

– Thomas L. Root

It’s Halftime for the 117th Congress, and Criminal Justice Reform Has Been Held Scoreless – Update for January 3, 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.

WELL, 2021 WAS KIND OF DISAPPOINTING…

NYDTypwrtr220103We all had high hopes for criminal justice reform when President Biden took the White House, and the Democrats won control of the House and Senate. The year 2021 was widely seen as the end of a dark era and the beginning of a brighter one. As Reason magazine said last week, it wasn’t just the close of just any year. It was the end of 2020.

Over the last 12 months, politicians h some steps to advance justice reform. But as is the case with so many New Year’s expectations, quite a bit also stayed the same.

Since Biden’s inauguration, criminal justice reform has taken a back seat to his more prominent initiatives, last March’s American Rescue Plan, the Infrastructure Investment and Jobs Act in November, and the now seemingly-dead Build Back Better social-spending blowout.

Biden did issue an executive order canceling contracts with private prison operators, a nice change for the 14,000 people in those joints. And his Dept, of Justice finally reinterpreted the CARES Act to let people on home confinement stay there. He has promised clemency reform. But the real work is to be done in Congress, w has yet to progress.

If you stayed awake in high school, you recall that every Congress lasts two years. Any bill introduced in the 117th Congress – which began in January 2021 – will stick around until the 117th expires a year from today. That means that the reform bills now in front of Congress still have a chance.

On New Year’s Day, the San Francisco Chronicle called for a targeted bill to abolish mandatory minimums, said, “The good news is that criminal justice reform can be accomplished with relatively limited expenditures — compared to, for example, Build Back Better’s sweeping expansion of the social safety net. That gives it a fighting chance of passing in today’s barely Democrat-controlled Congress.”

marijuana-dc211104

A couple of bills before Congress would reduce but not eliminate mandatory minimums: the EQUAL Act (lowers minimums for crack to equal those of powder) has passed the House but hasn’t yet cleared committee in the Senate; the MORE Act (decriminalizes marijuana retroactively) has been approved by a House committee but has not been passed by the House or Senate; the First Step Implementation Act (makes First Step mandatory minimum reductions retroactive) and the Smarter Sentencing Act (reduces mandatory minimum penalties for certain nonviolent drug offenses only) have not even cleared committee in either the House or Senate.

While the House also passed the MORE Act to decriminalize marijuana, the measure has been dead on arrival in the Senate, where Senate Majority Leader Chuck Schumer (D-New York) announced plans to draft his own version of the bill. The Schumer bill has been released as a working draft but has yet to be formally introduced.

In the House, Republican Rep. Nancy Mace (South Carolina) introduced the first GOP-sponsored bill in Congress to legalize marijuana, hinting that there may be openness to a bipartisan solution in the future. If the Democrats fail to take advantage of the political opportunity in front of them, Forbes said last week, they risk ceding this issue to the Republicans if and when they take back control of Congress, possibly as soon as next year.

When the SAFE Banking Act, a marijuana bill, passed the House last year, it got 106 Republican votes, demonstrating that the GOP can deliver votes on cannabis legislation. But the MORE Act that passed the House in the last Congress – the one with criminal retroactivity – received only five Republican votes. The current MORE Act has collected only one Republican co-sponsor.

cotton181219The problem is that most bills spend months in committee with no movement, or they pass in the House only to the Senate before dying out. And with mid-terms putting all of the House and a third of Senate up for re-election in November and crime rates shooting up, getting legislators on board for criminal justice reform is going to be more challenging.

And then there are demagogues like Sen. Tom Cotton (R-Arkansas). Last week, he wrote in Real Clear Politics:

Unfortunately, soft-on-crime policies have been, at times, a bipartisan problem. In 2018, Republicans passed the pro-criminal First Step Act. That deeply flawed legislation reduced sentences for crack dealers and granted early release to some child predators, carjackers, gang members, and bank robbers. Ironically, this jailbreak bill even provided early release for those who helped prisoners break out of jail. This misguided push by Republicans to win applause from liberals strengthened the hand of radicals like George Soros. In a political environment where the parties compete for who can be more pro-criminal, the Democrats will always win.

People like Cotton make even common-sense federal criminal justice reform a hard sell.

Reason, In 2021, Qualified Immunity Reform Died a Slow, Painful Death (December 30, 2021)

Forbes, The Least Eventful Year for Marijuana (December 31, 2021)

San Francisco Chronicle, Biden’s agenda is stuck. It doesn’t have to be that way with criminal justice reform (January 1, 2022)

S. 79: EQUAL Act

H.R. 3617, MORE Act

S. 1013: Smarter Sentencing Act of 2021

S. 1014: First Step Implementation Act of 2021

Brookings Institution, The numbers for drug reform in Congress don’t add up (December 22, 2021)

Real Clear Politics, Recall, Remove & Replace Every Last Soros Prosecutor (December 20, 2021)

– Thomas L. Root

2021 So Far a Downer for Criminal Justice Reform – Update for December 23, 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.

THE YEAR BEGAN WITH SUCH HOPE, TOO…

At the end of the first 11 months of President Biden’s administration, a combination of his lack of action on criminal justice reform, a razor-thin majority in Congress, and an ill-timed spike in crime is rapidly undercutting hope of criminal reform.

fail200526As New York magazine put it last week, “The president is now facing a new political context. In the previous two years, cities across the United States have seen historically large spikes in multiple categories of crime, including homicides in many places… The sense that things are terrible — even if they are happening during a multi-decade downward trend in crime rates and have likely been exacerbated by a global pandemic — seems to be costing the president politically as well. The results of an ABC/Ipsos poll published on Monday showed that just 36% of Americans approve of Biden’s handling of crime, down from 43% in late October.

Critics working to overhaul the criminal justice system say they’re frustrated with the Biden administration after waiting nearly a year for the White House to take significant clemency and sentencing reform steps. “I think we’re at a point where we’re saying mere lip service isn’t enough,” said Sakira Cook, senior director of the justice reform program at the Leadership Conference on Civil and Human Rights. “We want to see some concrete action.”

“To me, it’s a bellwether,” said FAMM President Kevin Ring. “Because if the administration won’t address this, and address it immediately, I don’t know what hope we can have that other things are going to get done.”

A White House spokesman defended Biden’s record, arguing that he had restored the Dept of Justice’s Office for Access to Justice, implemented new restrictions on chokeholds and no-knock warrants for federal law enforcement, ended contracts with private prisons, and expanded access to re-entry services for released inmates. And critics admit DOJ’s rescission of the Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And just this week, DOJ walked back the Trump-era Office of Legal Counsel opinion that CARES Act home confinees had to return to prison after the national pandemic emergency ends.

Still, there’s no denying that the federal prison population dropped under Presidents Obama and Trump but has increased by some 5,000 people during Biden’s 11 months in office.

confusion200424To be sure, Biden’s plans were never well thought out. As Ralph Behr pointed out last week in the South Florida Criminal Defense Lawyer Blog, Biden’s campaign last year called for passage of the Safe Justice Act, a bill killed by the House in 2017. He also called for abolishing mandatory minimums, which would require amending hundreds of statutes, something that “would require bipartisan support for an issue that has historically proven controversial. This is unlikely to gain enough support even to be drafted. The more likely and admirable implementation would be to allow judicial discretion in sentencing below the minimum mandatory sentence.”

As the Leadership Conference on Civil and Human Rights demanded last week, Biden and his DOJ could expand CARES Act and compassionate release access. Or, as the Daily Caller suggested, he could demand that the BOP and its union clear up the logjam on implementing First Step Act earned time credit programs.

Legislatively, there’s one bright spot: The Hill reported this past weekend that Congressional Democrats are gearing up for a sweeping set of initiatives aimed at decriminalizing marijuana in spring 2022.

The proposals would, among other things, purge the criminal records of thousands of marijuana offenders and be retroactive for those serving marijuana sentences.

“The growing bipartisan momentum for cannabis reform shows that Congress is primed for progress in 2022, and we are closer than ever to bringing our cannabis policies and laws in line with the American people,” Reps. Earl Blumenauer (D-Oregon) and Barbara Lee (D-California) wrote in a memo to the Congressional Cannabis Caucus on Thursday.

Just last week, Marijuana Moment complained last week that “this is yet another example of legislators taking a demand for reform directly to the president, who has disappointed advocates in his first year in office by declining to take meaningful steps to change the country’s approach to cannabis despite campaigning on a pro-decriminalization and pre-rescheduling platform.”

crackpowder160606On crack cocaine, Biden could push Senate Democrats to pass S.79, the EQUAL Act, which has already passed the House and has cleared the Senate Judiciary Committee. Last week, Sen. Susan Collins (R-Maine) because a co-sponsor.

The Justice Action Network issued a statement saying, “With this level of bipartisan support, the drumbeat grows louder for Senate Majority Leader Chuck Schumer (D-NY) to vote the EQUAL Act. In New York, more than twenty leading New York-based civil rights, racial justice and criminal justice organizations recently sent an urgent letter to Leader Schumer urging him to move the EQUAL Act through the Senate, ‘by any means necessary’…”

New York magazine, Biden’s Low Marks on Crime Are Killing Reform (December 15, 2021)

South Florida Criminal Defense Lawyer Blog, Analyzing President Joe Biden’s Criminal Justice Reform Plan (December 14, 2021)

NPR, Activists wanted Biden to revamp the justice system. Many say they’re still waiting (December 12, 2021)

Leadership Conference on Civil and Human Rights, Letter to Attorney General Merrick Garland (December 17, 2021)

Daily Caller, The First Step Act Is A Giant Leap Toward Meaningful, Bipartisan Prison Reform (December 13, 2021)

The Hill, Congress to take up marijuana reform this spring (December 18, 2021)

Marijuana Moment, GOP Lawmakers Blast Biden And Harris Over ‘Continued Silence’ On Marijuana And Urge Rescheduling (December 16, 2021)

Seattle Medium, It’s Time For The U.S. Senate To Pass The EQUAL Act (December 17, 2021)

Justice Action Network, Senator Susan Collins Joins Bipartisan Sentencing Reform Bill, Positioning Equal Act for Passage (December 15, 2021)

– Thomas L. Root

Congress Passes on Pot Reform in NDAA Bill – Update for December 10, 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.

SENATE MANEUVERS COULD JEOPARDIZE DRUG LAW REFORM

marijuana160818With only a handful of legislative days left this year, Senate Majority Leader Chuck Schumer (D-NY) is demanding that the chamber pass the National Defense Authorization Act (NDAA), a federal budget, a debt-ceiling increase, and the Build Back Better Act before Christmas. There’s no room in Santa’s bag for any criminal justice reform with that very ambitious agenda.

Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the NDAA. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses — a potentially significant achievement for the industry. That wasn’t enough to secure its inclusion in the final NDAA, which was intensely negotiated between the two Congressional chambers. But on Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

(The House passed the SAFE Banking Act this past April, as it did in 2019, but it again stalled before making headway in the Senate.)

marijuanahell190918Schumer and Booker had already said they want to hold off on the banking measure until Congress passes the more comprehensive reform. Wyden said last week the trio hasn’t shifted from their position. “We’re going to keep talking, but Sen. Schumer, Sen. Booker, and I have agreed that we’ll stay this course,” Wyden said last Monday. “The federal government has got to end this era of reefer madness.”

The split over marijuana policy raises the genuine possibility that Congress could again fail to pass any meaningful changes to marijuana law, despite polls showing large majorities of Americans support at least partial legalization of the drug. While the SAFE Banking Act did not directly address the Controlled Substance Act penalty statutes, its passage would have paved the way for sentence reform.

Meanwhile, the EQUAL Act – which would retroactively reduce penalties for crack cocaine – isn’t yet on life support, but it’s not healthy, either. A coalition of Iowa advocacy groups last week urged. Sen Charles Grassley (R-Iowa) and other lawmakers to pass the bill, already overwhelmingly approved by the House.

The ranking Republican on the Senate Judiciary Committee, Grassley has been pushing the First Step Implementation Act and COVID-19 Safer Detention Act. He co-sponsored the 2010 Fair Sentencing Act that reduced the crack-cocaine ratio from 100:1 to 18:1.

crack-coke200804In September, Grassley told reporters he was doubtful eliminating the sentencing disparity would fly in the Senate. “I think there’s a possibility of reducing the 18 to 1 differential we have now,” he said, “but I don’t think one-to-one can pass.”

Grassley said he was unwilling to push the EQUAL Act if it would sink the criminal justice reform package he and Durbin have been working to pass.

Cannabis Wire, SAFE Banking Scrapped from NDAA Despite Major Push (December 8, 2021)

Wall Street Journal, Will Santa Claus Visit Chuck Schumer? (December 1, 2021)

The Intercept, Marijuana Banking Reform in Defense Bill on the Brink of Collapse as Democrats Split (December 2, 2021)

Quad City Times, Iowans urge Grassley, Senate to pass bill closing drug sentencing disparity (December 3, 2021)

– Thomas L. Root

Crack-Powder Equality Gains Traction in the Senate – Update for November 2, 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.

EQUAL ACT MAY HAVE FOUND FAVORABLE WINDS IN SENATE

The EQUAL Act, S.79, which would eliminate all disparities between crack and powder cocaine (and make those changes retroactive) received a much-needed boost in the Senate last week.

crackpowder160606Last month, the House of Representatives passed the EQUAL Act (H.R. 1693) on a bipartisan vote of 361-66. But the same legislation in the Senate, S.79, has not yet even gotten a Committee hearing. In fact, Sen Charles Grassley (R-IA) – a supporter of the Act – has said he doubts he can find the votes for passage of EQUAL in the Senate.

Things may be looking up. But last Wednesday, Sen Lisa Murkowski (R-AK) became the 9th co-sponsor of S.79 (and the 5th Republican to do so). And last week, Durbin – who as chairman of the Judiciary Committee controls its docket – issued a press release urging his colleagues to support EQUAL.

Wednesday, by the way, was the 35th anniversary of the passage of the Anti-Drug Abuse Act. The country was reeling from the tragic death of University of Maryland basketball star Len Bias, who died of a drug overdose just days after being drafted by the Boston Celtics. Assuming that the drug that killed Bias was crack, Congress passed a law that would impose harsher penalties on crack offenses. It later became known that Len overdosed on powder cocaine, not crack, but the narrative that crack was more dangerous than powder had already found its legs. The Sentencing Commission and the Obama Administration both called for crack-powder equity, but it hasn’t yet happened.

Sen Murkowski’s support is significant. With at least six Republican votes in the bag for EQUAL (and several more quite likely), the magic number of 60 (needed to avoid a filibuster) is within reach. A Judiciary Committee hearing will make the level of support clearer.

crack211102Holly Harris, President and Executive Director of criminal justice reform group Justice Action Network, issued a statement saying, “The EQUAL Act has strong conservative support, from Senators Murkowski, Graham, Paul, Portman, and Tillis, and from more than 150 Republicans in the House. It has the backing of law enforcement, prosecutors, civil rights groups, and advocates from the far left to the far right and everywhere in between. The EQUAL Act may be Congress’s last chance to pass bipartisan legislation squarely focused on racial injustice, and it’s time for a vote in the Senate.”

A commentator in an Iowa newspaper, wrote last week that “law enforcement leaders, including US attorneys with whom I worked during the Trump Administration, as well as the National District Attorneys Association and the Major Cities Chiefs Association, all support the EQUAL Act because they believe it builds trust between law enforcement and the communities they serve.”

Support like that will help swing Republican votes in the Senate toward EQUAL.

Interrogating Justice, EQUAL Act Gets Much-Needed Path Forward in Senate (October 28, 2021)

Sen Richard Durbin, Durbin: The Senate Must Follow the House’s Lead & Eliminate the Federal Crack and Powder Cocaine Sentencing Disparity (October 28, 2021)

The Hill, After 35 years, Congress should finally end the sentencing disparity between crack and powder cocaine (October 27, 20231)

Justice Action Network, Marking 35th Anniversary of Infamous “War on Drugs” Bill, Sen Lisa Murkowski is First Woman in Senate to Sign Onto Equal Act (October 27, 2021)

Mason City, Iowa, Globe Gazette, Chuck Grassley is back, as is criminal justice reform (October 27, 2021)

– Thomas L. Root