Tag Archives: EQUAL Act

You Know, Joe, You Could Be Doing A Lot More… – Update for October 28, 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.

WHO YOU GONNA BELIEVE, JOE BIDEN OR YOUR OWN EYES?

whoyabelieve201214President Joe Biden’s Administration has said all the right things about criminal justice reform, making its inaction or, worse, contrary actions on significant initiatives in Congress (or even in the President’s own Dept. of Justice) frustrating and baffling. So do we believe what we hear or what we see?

But then, the guy so far can’t get his signature infrastructure bill through his own party’s caucus. Maybe I am expecting too much from the septuagenarian chief executive.

Still, what Biden himself could be doing without Congress is addressing the 4,000 inmates on CARES Act home confinement. Those people, according to both Trump’s and Biden’s Dept of Justice, will have to return to prison when the national pandemic emergency ends, which could be as soon as early next year. Recently, 28 House Democrats became the latest to urge Biden to “immediately commute the sentences” of the CARES Act home confinees. The lawmakers also urged the creation of an independent board to review a massive backlog of more than 15,000 petitions seeking clemency.

“Nearly all of those released have thrived since returning home by reconnecting with their families and communities, and by engaging actively in civic life,” David Trone (D-MD) and his colleagues wrote to the president. “Mr. President, with a stroke of your pen you could remove the threat of reincarceration that looms over thousands of people who have already demonstrated their commitment to being productive members of their communities.”

Last week, Kara Gotsch, deputy director at the Sentencing Project, a Washington-based nonprofit focused on injustices in the criminal justice system, said the DOJ’s opinion is “devastating” for those who are staying at home and now face the possibility of being sent back to federal prison. “It is really a shame that the White House and DOJ appear to be standing by that memo issued by the Trump administration,” she said.

The Capital News Service reported Gotsch has been in communication with the Biden administration, asking for grants of clemency for everybody who’s been serving sentences in home confinement, but the White House is considering granting it to only some.

“I think that’s a step in the right direction, but there’s no reason why anyone who has proven themselves to be successful on the home confinement program should be sent back,” she added.

warondrugs211028If the Administration is so concerned about racial disparity, it might urge the Senate to take up the EQUAL Act (S.79). According to the Sentencing Commission, no class of drug is as racially skewed as crack: 79% of sentenced crack offenders in 2009 were black, versus 10% white and 10% Hispanic. Combined with a 115-month average imprisonment for crack offenses versus 87 months for powder offenses, this makes for more African-Americans spending more time in the prison system.

Instead, Biden is pushing a proposal that would enhance sentences for certain synthetic opioids related to fentanyl. A coalition of nearly 100 civil rights and criminal justice reform groups last week warned that the plan will exacerbate racial disparities.

“Since the inception of the war on drugs, African Americans and Latino people have borne the brunt of enforcement-first approaches,” Sakira Cook of the Leadership Conference on Civil and Human Rights, said. She argued that about 70% of defendants charged with fentanyl-related crimes have been minorities.

The Biden Administration defends the initiative as needed to stop the overdose epidemic.

Last week Kristen Clarke, the DOJ’s civil rights chief, highlighted the racial disparities in state juvenile detention systems. “Nationally, black children are over four times more likely to be incarcerated than white children,” Clarke said. “And the disparity is even greater in Texas, where Black children are over five times more likely to be incarcerated.”

Apparently, racial disparities are only important when the states cause them.

NPR, A proposed Biden drug policy could widen racial disparities, civil rights groups warn (October 20, 2021)

Drug Policy Alliance, Letter to Congress (October 22, 2021)

CNN, ‘Big, big shifts’: How Biden’s civil rights pros have reoriented the Justice Department (October 20, 2021)

Southern Maryland Chronicle, Democrats in Congress press Biden to extend COVID-related prisoner releases (October 19, 2021)

– Thomas L. Root

Criminal Justice Reform: Stalled but Not Forgotten – Update for October 22, 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.

[Note: This story was corrected on October 25, 2021, to indicate Mark Holden is no longer Koch Industries’ senior vice president and general counsel, and to note that the Koch brother active in criminal justice reform is Charles. His late brother, David, was also a supporter of the effort]

SO WHERE ARE ALL THOSE NEW LAWS?

justicereform161128With the election of President Biden and the accession of Democrats to control of Congress, some predicted the dawning of a new era of criminal justice reform. Now, with this Congress almost halfway through its two-year term and predictions of loss of Democratic control of at least one house of Congress, people what, if anything, will change.

Michael Correia, executive director of the National Cannabis Industry Association, told the Business Insurance Cannabis Conference last Wednesday that with “frenzied negotiations” now focused on the immediate crises of the debt ceiling and multi-trillion-dollar infrastructure legislation, legislators’ ability to address the SAFE Banking Act and the Marijuana Opportunity Reinvestment and Expungement (“MORE”) Act “is diminished simply due to time constraints.”

Still, he noted that the MORE Act, which removes marijuana from the list of controlled substances and eliminates criminal penalties for an individual who manufactures, distributes, or possesses marijuana, has passed the House.

Next year, panelists agreed, the 2022 mid-term elections will take center stage on the U.S. political scene, “potentially continuing some of the challenges of pushing cannabis higher on the legislative agenda.”

Meanwhile, while the EQUAL Act, which equalizes penalties for powder and crack cocaine, passed the House on September 28, by a vote of 361-66. But will it make it through the Senate, where negotiations on the recent George Floyd Justice reform bill – which was to make police more accountable – collapsed? Some Washington lobbyists concede it “faces an uphill battle.”

crackpowder160606Former Koch Industries Senior Vice President Mark Holden, who  spearheaded the efforts of Charles and the late David Koch  efforts on criminal justice reform, wrote last week that the EQUAL Act, by Senators Thom Tillis (R-NC) and Rob Portman (R-OH) in the Senate, and Reps. Kelly Armstrong (R-ND) and Don Bacon (R-NE) in the House, and has more than 50 bipartisan co-sponsors. He argued that supporting EQUAL Act and the First Step Implementation Act is a conservative imperative: “We must continue to establish ourselves as leaders in criminal justice reform. It is a proven political winner, judging from President Trump`s expanded GOP coalition, especially black voters, who cited his support for criminal justice reform as a reason for their vote. It is a proper platform to assert conservative principles.”

At the same time, some liberals are declaring criminal justice reform dead, and blaming feckless Democrats in Congress. “Bipartisan discussions around criminal justice reform, which were already dying of neglect after months of inaction, finally collapsed last week after Republicans refused to support Democrat-proposed measures to increase police accountability,” the Daily Beast reported. “Equally to blame is the amateurish way Democrats have allowed the GOP to drive messaging around criminal justice reform in what amounts to Democratic lawmakers scaring themselves with their own shadows…Leadership, including Biden, began to visibly back away from the criminal justice reformers who make up a big chunk of the party’s activist base. That was cowardly at the time. Now that the GOP’s arguments have been shown to be nonsense, continued Democratic silence is indefensible.”

mandatory170612Earlier this week, the Brennen Center for Justice provided a stark illustration of the disconnect between what the Biden Administration says and what it does:

President Biden and his attorney general have denounced mandatory minimums, as did former Attorney General Eric Holder. Even though federal prosecutors — all of whom are subject to supervision by the Department of Justice — have long been the primary proponents of mandatory minimums, Attorney General Merrick Garland affirmed this position during his confirmation hearings… However, despite Garland’s testimony, his Department of Justice has given no sign that it will stop pursuing mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors: “Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum” should be charged. To make matters worse, Garland chose not to reinstate a 2013 Holder policy that both directed prosecutors to decline to charge a mandatory minimum in “low-level, non-violent drug offenses” and explicitly acknowledged that such sentences “do not promote public safety, deterrence, and rehabilitation.”

And these are the people spearheading change? Good luck with that…

Business Insurance, Cannabis legislation progress slows (October 13, 2021)

Miami Times, Fairness in cocaine sentencing up to US Senate (October 12, 2021)

Newnan Times-Herald, Cracking the Code on Justice Reform (October 11, 2021)

Fox News, Trump made conservatives criminal justice reform leaders. Here’s how to keep it that way (October 10, 2021)

Daily Beast, Why Dems Clammed Up About Reforming a Racist Justice System (October 13, 2021)

Brennen Center, End Mandatory Minimums (October 18, 2021)

– Thomas L. Root

Hey, Bud, Look What the House Judiciary Committee Lit Up – Update for October 8, 2021

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

BUT WAIT, THERE’S MORE…

marijuanahell190918We reported last Friday on the House passage of the EQUAL Act. In our glee over the potential redress of the racially disparate crack-to-powder laws, we overlooked the House Judiciary Committee’s approval of the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, H.R. 3617, on a 26-15 vote.

All Democrats on the Committee supported the bill while all but two Republicans opposed it.

Among other measures, the bill removes marijuana from the Controlled Substances Act, changes that “are retroactive and shall apply to any offense committed, case pending, conviction entered, and, in the case of a juvenile, any offense committed, case pending, or adjudication of juvenile delinquency entered before, on, or after the date of enactment of this Act.”

The bill still has to be approved by the House, as well as facing an uphill fight in the evenly-divided Senate. There is no timeline for full House or Senate action.

crackpowder160606Meanwhile, Sen. Richard Durbin (D-IL), Chairman of the Judiciary Committee, Sen. Charles Grassley (R-IA), and others last week introduced the Terry Technical Correction Act, which clarifies that individuals convicted of the lowest level crack offenses before the Fair Sentencing Act passed can apply for its retroactive application under Section 404 of the First Step Act. The same bill was introduced simultaneously in the House by bipartisan cosponsors led by Rep. Jerrold Nadler (D-NY) and Rep. Sheila Jackson-Lee (D-TX).

The bill seeks to amend the text of First Step Section 404 to make people sentenced for crack offenses prior to the passage of the Fair Sentencing Act eligible for sentence reductions even where they were sentenced under 21 USC 841(b))(1)(C), which has no mandatory minimum sentence, thereby undoing the Supreme Court’s Terry v. United States decision of last June. The bill has not yet been scheduled for a committee hearing.

House Judiciary Committee, Chairman Nadler Statement for the Markup of H.R. 3617, the MORE Act of 2021 (September 30, 2021)

H.R. 3617, MORE Act of 2021

Press Release, Senators Introduce Legislation to Correct Scotus Ruling on Retroactivity of Crack Cocaine Sentencing Reform (October 1, 2021)

House Judiciary Committee, Bipartisan Judiciary Committee Members Introduce Legislation to Clarify Retroactivity of Crack Cocaine Sentencing Reform (October 1, 2021)

– Thomas L. Root

EQUAL Act Jumps Low Hurdle, High Hurdle is Next – Update for September 30, 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.

HOUSE PASSES EQUAL ACT

crackpowder160606Over 25 years ago, the United States Sentencing Commission – never a hotbed of progressive thought – concluded that the draconian drug policy of considering every gram of crack cocaine to be the equivalent to 100 grams of powder cocaine was irrational and resulted in disproportionately severe crack sentences being imposed mostly on black defendants.

But just as sex sells in the marketing ethos, outrageous punishment sells in the political world. At least until a few years ago, no member of Congress ever lost an election because he or she was too tough on crime.

Fourteen years ago, Presidential candidate Barack Obama decried the crack-to-powder disparity, and in April 2009, his Dept of Justice lobbied for the elimination of the 100:1 ratio. The House passed a 1:1 bill that year, but by the time the Senate took it up the following summer, 1:1 had become 18:1 in order to satisfy certain troglodytes in that chamber, chief among them the unlamented former senator Jefferson Beauregard Sessions III of Alabama.

Jefferson Beauregard Sessions III
Jefferson Beauregard Sessions III

The resulting Fair Sentencing Act mandated a new 18:1 crack/powder quantity disparity ratio, but without retroactivity, so that accidents of time hammered a defendant who was sentenced in July 2010, for example, with a 100:1 sentence, while one whose lawyer managed to delay sentencing until the dog days of August benefitted from a much shorter mandatory minimum. Under this formula, people caught with 28 grams of crack receive the same sentence as someone caught with 500 grams of powder cocaine, despite the American Medical Association’s findings that there is no chemical difference between the two substances.

The Fair Sentencing Act became retroactive to all defendants with crack mandatory minimums (but see United States v. Terry) by the passage of the First Step Act in December 2018.

Fast forward to last week. The EQUAL Act, pending in both houses of Congress, proposes the elimination of any disparity between crack and powder cocaine. But Sen Charles Grassley (R-Iowa) a conservative lawmaker from the heart of the corn belt but a champion of criminal justice reform, said candidly that he didn’t think he could find enough Republican votes to come up with the 60 needed to pass the EQUAL Act in the Senate.

This past Tuesday, the House decided to give Grassley the chance to try anyway, passing the EQUAL Act (H.R. 1693) by a lopsided vote of 361-66. (Grassley may have a point. All 66 nay votes in the House were from GOP lawmakers).

Surprisingly (at least to me), Representative Louie Gohmert (R-Texas), a former judge who has said some people – not without some justification, I might add – think he is the “dumbest guy in Congress,” was a sponsor of the EQUAL Act. The Congressman said the measure was “a great start toward getting the right thing done. He said during floor debate that as a judge, “Something I thought Texas did right was [to] have an up-to-12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they’ve got a better chance of making it out, understanding just how addictive those substances are.”

In the Senate, at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A Senate version of the EQUAL Act, S.79, was introduced by Sen. Cory Booker (D-NJ) and currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Kentucky), and Thom Tillis (NC). It remains before the Committee on the Judiciary.

The House version of the EQUAL Act that just passed provides that in the case of a defendant already serving a sentence based in any part on cocaine base may return to court to receive a sentence reduction, in a procedure that appears to be similar to the Section 404 procedure for Fair Sentencing Act retroactive resentencings, but with one interesting twist: Section 404 proceedings do not require the district judge to consider whether a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). The EQUAL Act procedure permits imposition of a sentence reduction only “after considering the factors set forth in section 3553(a) of title 18, United States Code.”

Is this a good thing? Probably anything that adds structure (however slight) to the process is beneficial. Without any standard, nothing prevents a district judge from making arbitrary decisions. Even with a § 3553(a) requirement, a Sentencing Commission study of the compassionate release process has found that a defendant’s likelihood of success ranged from about 70% in Oregon to a lousy 1.5% (Western District of North Carolina).

crack-coke200804Anything that can avoid swapping one disparity for another is probably a good thing.

So what would be the practical effect of such a change? When the Fair Sentencing Act passed, the U.S. Sentencing Commission responded by reducing sentencing ranges across the board for crack offenses, so that a five-year mandatory sentence for a defendant without a prior criminal history possessing 28 grams of crack equaled what the Guidelines said his sentence should be. If the ratio falls to 1:1, and if the Sentencing Commission makes the same adjustments, a hypothetical defendant with no prior record (and no sentencing enhancements) would see the following sentencing range adjustments:

chart210624

Of course, as they say in the commercials, “actual results may vary.” But if the courts are mandated to consider § 3553(a) first, maybe they will vary less.

But first, the EQUAL Act has to pass the Senate…

– Thomas L. Root

Police Reform Goes Down; EQUAL Act May Be Next – Update for September 27, 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.

NO GOOD NEWS ON CRIMINAL JUSTICE REFORM

good-bad-news-400pxDemocratic and Republican negotiators in the Senate last Wednesday called off talks aimed at overhauling police tactics and accountability, with the lawmakers unable to reach a compromise in the wake of nationwide protests sparked by the killings of Black Americans by law-enforcement officers.

Sen. Cory Booker (D-NJ) said, “In the end we couldn’t do it, if you just take some of those issues of transparency, professional standards and accountability, we couldn’t get there.”

The implications for criminal justice reform are significant. If the two parties can’t get together on reforms most everyone believes are needed, other reform measures could be stillborn. Last week, Sen Charles Grassley (R-Iowa) – one of the two sponsors of the First Step Act – said that the EQUAL Act, which will reduce penalties for crack to match those for powder cocaine, doesn’t have enough support in the Senate to pass. Attempting to eliminate the disparity, Grassley said last week, would jeopardize the likelihood he and Sen. Richard Durbin (D-Illinois) can get the 60 votes needed to bring the justice reform bills to the floor. Among Republican colleagues, it’s a non-starter, he said.

compromise180614“Does that mean that there’s not some possibility for compromise? I would be open to that, but I’m going to have to get enough Republicans to go along to make sure we don’t scuttle the other good provisions we have,” Grassley said.

Although optimistic about prospects for his justice reforms, such as the First Step Implementation Act and the COVID-19 Safer Detention Act, Grassley acknowledged the looming challenge is “dealing with all the other things that are on the agenda right now and have been all year.” He anticipates Democratic Senate Majority Leader Chuck Schumer (D-NY) will give Durbin and him time to debate and pass their package this fall. “But with the progress of negotiations and floor time and all the other stuff that’s in the news more often than this is, I think it could be delayed into 2022,” Grassley said.

Grassley’s realistic appraisal is in stark contrast to the hopeful tone in yesterday’s New York Daily News. William Underwood, whose life sentence was cut by compassionate release and who now works with The Sentencing Project, wrote that while “bipartisanship on Capitol Hill is in short supply these days, these bills can pass the Senate with broad support from both parties. Passing these two bills would acknowledge that each and every one of us, when given the opportunity, can be better than the worst thing we have ever done.”

marijuana160818One piece of hopeful news came last week with the House of Representatives passing the National Defense Authorization Act. Tucked into that bill were provisions of the SAFE Banking Act, which would protect banks by prohibiting regulatory actions to keep them from servicing legitimate marijuana businesses. Passage suggests that action to normalize the sale and use of marijuana may continue, and lead to retroactive changes in federal criminal pot laws.

Wall Street Journal, Bipartisan Police-Overhaul Talks End With No Deal (September 22, 2021)

Sioux City Journal, Grassley skeptical of GOP support for cocaine penalty reforms (September 20, 2021)

Marketwatch, House includes cannabis banking measure in defense bill (September 22, 2021)

New York Daily News, Bend Open the Prison Bars (September 26, 2021)

– Thomas L. Root

There Ain’t No Easter Bunny… – Update for September 16, 2021

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HOW’S THAT 65% BILL DOING?

After answering yet another email about the mythical 65% bill – legislation that purportedly would reduce everyone’s sentence to 65% of what the court imposed – I thought I would lead with this sad news:

There is no Santa Claus. There is no Easter Bunny. And there is no 65% Bill.

easterbunny210916While Congresswoman Sheila Jackson Lee (D-Texas) has introduced such a bill in a number of previous sessions of Congress since 2001, there is no such bill in the hopper now. When she did introduce it, the bill never even got a committee hearing. If it did exist, it wouldn’t get one now. A 65% bill would stand a chance of passage approaching zero.

In sum, the so-called 65% bill is like a pink unicorn: fun to imagine, but not real. And neither is the rumor that everyone will get a sentence cut because of COVID.

So what is real? First, a letter sent last week by 25 state attorneys general to House and Senate leadership, urging an expansion of Section 404 of the First Step Act to include people sentenced under 21 USC § 841(b)(1)(C). You recall that in Terry v. United States last June, the Supreme Court held that Section 404 did not qualify pre-2010 crack sentences for sentence reduction. The state attorneys general want legislation to change that.

Second, a lot of criticism of the President over the CARES Act. Writing in the Washington Examiner last week, Matt Schlapp – chairman of the American Conservative Union – argued that Congress should act to ensure that CARES Act home confinees stay at home after the pandemic ends. He wrote, “As a former influential senator and Judiciary Committee chairman, President Joe Biden is at least partially responsible for the explosive growth of our federal prison population. His legislative record is riddled with bills he supported, and sometimes wrote, that filled BOP cells and encouraged states to do the same. Indeed, there are thousands of Americans still serving draconian sentences authorized by some of then-Sen. Biden’s bills.”

chart210624Meanwhile, a piece in the Deseret News made the conservative argument for the EQUAL Act, which would retroactively make crack cocaine sentencing levels equal to those of powder cocaine: The EQUAL Act already passed through the U.S. House Judiciary Committee with a vote of 36-5, garnering support from both sides of the aisle. It faces another battle to pass through the rest of Congress, and Utah’s delegation should be there to vote in support. The debate over crack versus powder cocaine has no basis in science, in rationality, or in ethics. Because of this, many individuals have been needlessly imprisoned for far too long in comparison to the crime committed. Congress should pass the EQUAL Act to ensure these penalties are equalized and fairness is restored to criminal sentencing.”C

So when will Congress get to any criminal justice reform measures? No one knows. Only a few bills have been voted out of committee in the Senate – the COVID-19 Safer Detention Act, the First Step Implementation Act of 2021, and the Prohibiting Punishment of Acquitted Conduct Act. In the House, the EQUAL Act is the only criminal justice bill voted out of committee. No floor votes have been scheduled for any bills. With infrastructure and the $3.5 trillion spending bills taking center stage in Congress, it is unlikely that criminal justice reform will get any attention until next year.

Letter to Sens Charles Schumer and Mitch McConnell (September 2, 2021)

Washington Examiner, Biden promised to address over-incarceration. He’s blowing his opportunity (September 8, 2021)

Deseret News, Conservatives should support sentencing reform for crack cocaine (September 8, 2021)

– Thomas L. Root

SIZZLE BUT NO STEAK YET IN WASHINGTON – UPDATE FOR AUGUST 13, 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.

LAST WEEK IN WASHINGTON

oddcouple210219The news website Axios reported last week that Sens. Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – the Senate’s criminal-justice reform “odd couple” – “are working to win Senate passage of a big criminal justice reform package this Congress.”

Axios cited approval of three bills by the Senate Judiciary Committee, the COVID-19 Safer Detention Act, the First Step Implementation Act, and the Prohibiting Use of Acquitted Conduct Act as being “three measures, Grassley told Axios, they ‘hope to package along with potentially other proposals to pass the Senate sometime this Congress’.” Durbin separately told Axios in his own statement that he’s “committed to bringing these bills to the Senate floor this Congress.”

Axios predicts the final package also may include a measure for CARES Act confinees who otherwise may be forced to return to prison, a Republican Senate staffer told Axios, as well as the EQUAL Act. One challenge will be the crime spike, Axios said, which has the potential of sapping support from senators afraid of being branded soft on crime.

I like Axios, which is a pretty even-handed service, albeit more of a news aggregator than a news reporter. (Nothing wrong with news aggregators – LISA is largely one itself). But because it’s an aggregator, I am not sure whether Axios’s report represents something new, or is just a survey of what we already know.

caresbear210104In other developments, a coalition of five civil rights groups last week urged the Dept of Justice to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars.

They argued that the Trump-era legal memo that concluded BOP is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over, contending the Office of Legal Counsel memo is based on a flawed interpretation of the CARES Act.

Update: Yesterday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC § 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

So far, the President has resisted by inaction such calls to address the looming home confinement crisis.

Axios, Senate plans barrage on crime (August 1, 2021)

The Hill, Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic (August 4, 2021)

Letter to Dawn E. Johnsen, Acting Asst Attorney General (August 4, 2021)

The Hill, Top Senate Democrats urge Biden to take immediate action on home confinement program (August 12, 2021)

Letter to President Biden from Sens. Durbin and Booker (August 12, 2021)

– Thomas L. Root

Yes, We’re Back From Vacation… and the House Has Been Busy – Update for July 23, 2021

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HOUSE JUDICIARY COMMITTEE PASSES EQUAL ACT ON TO FULL HOUSE

The House Committee on the Judiciary approved the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act (HR 1693) on Wednesday by a 36-5 vote, making the measure the leading contender for the first criminal justice reform bill to be passed by the 117th Congress.

crackpowder191216

The EQUAL Act would eliminate the federal crack and powder cocaine sentencing disparity and retroactively apply it to those already convicted or sentenced. The sentencing disparity between crack and powdered cocaine, at one point as high as 100 to 1, helped fuel the mass incarceration epidemic; 77.1% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic, according to a Fiscal Year 2020 report from the USSentencing Commission.

Even under the Fair Sentencing Act of 2021, which was intended to reduce the ratio to 1:1, compromises made to satisfy certain troglodytes in the Senate (yes, Jefferson Beauregard Sessions III, we’re talking about you) imposed an 18:1 ratio. That ratio meant that while one must be convicted of a crime involving 500 grams of cocaine to qualify for a minimum five-year sentence, a mere 28 grams of crack is enough to earn a defendant the same sentence.

The EQUAL Act was introduced earlier this year by Senators Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois), as S.79. Beyond getting rid of the disparity, the bill would entitle those previously convicted of drug offenses to request a sentence reduction (which, like prior retroactive sentencing changed) would permit the sentencing judge to exercise discretion on granting or denying a lower sentence.

“For over three decades, unjust, baseless and unscientific sentencing disparities between crack and powder cocaine have contributed to the explosion of mass incarceration in the United States and disproportionately impacted poor people, Black and Brown people, and people fighting mental illness,” Booker said.

congress210723For those readers who skipped government class in high school, HR 1693 must still be voted on by the House of Representatives, just as the Senate version (S.79) – while receiving a lot of happy talk during a June 22 hearing – must be passed out of Committee and then put on the full Senate’s calendar. As of today, the measure is not on the Senate Judiciary Committee executive meeting calendar. As FAMM put it in an email blast yesterday, “The EQUAL Act goes to the full House of Representatives for a vote next, and then must be passed by the Senate and signed by President Biden before it can become law. The fight isn’t even close to over yet.”

House Judiciary Committee, Markup of H.R. 1693 (July 22, 2021)

Brooklyn Eagle, House Committee Passes EQUAL Act (July 22, 2021)

Regina, Saskatchewan, Leader-Post, U.S. politician wants everyone to ‘get real’ and admit weed doesn’t enhance performance, except maybe for hot dog eating (July 22, 2021)

– Thomas L. Root

Senate Judiciary Committee Takes a Crack at Crack Disparity – Update for June 24, 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.

COMMITTEE HEARING BRINGS HOPE TO PRISONERS WITH CRACK SENTENCES

The big news this week was the Senate Judiciary Committee’s Tuesday lovefest on scrapping the disparity between crack cocaine and powder cocaine.

crackpowder160606The Committee conducted a hearing on S.79, The EQUAL Act (an acronym for “Eliminating a Quantifiably Unjust Application of the Law”). The Act, sponsored by Sen. Cory Booker (D-New Jersey), would correct mandatory minimum sentences in 21 U.S.C. § 841(b) so that a like amount of cocaine base (“crack”) and cocaine hydrochloride (“powder”) would dictate a like minimum sentence.

A brief history lesson: About 35 years ago, a senator from Delaware by the name of Joe Biden co-sponsored the Anti-Drug Abuse Act of 1986. That law imposed mandatory minimum sentences for drug offenders and created a 100-to-1 sentencing disparity between crack and powder cocaine. This meant that the poor mutt caught with five grams of crack would get the same mandatory five-year minimum sentence that a dealer walking around with over a pound of cocaine powder would face. This, of course, was because that crack turned every user into a superhuman killer, all crack dealers carried assault rifles and multiple handguns, and the merest sniff of a rock of cocaine base cocaine would turn a nun into a crack whore for life.

None of that is true, of course, but that deterred Congress not in the least. What was true was that crack was much cheaper than powder, and the drug thus became the abuse-of-choice in poorer and minority communities. As a result, the much harsher crack cocaine penalties fell on minority defendants at a rate disproportional to their representation in the general population.

In later years, under pressure from criminal justice advocates who cited the wide racial disparities and massive sentences that resulted, Presidential Candidate Biden reversed his stance. Indeed, part of his 2020 campaign platform included ending the disparity.

sessions170811Congress got there first. In 2010, it passed the Fair Sentencing Act, which reduced the crack-powder disparity from 100:1 to 18:1. The original legislation as passed by the House eliminated the disparity altogether, but – as Judiciary Committee Chairman Richard Durbin (D-Illinois) confirmed during last Tuesday’s hearing – a compromise at 18:1 had to be reached in the Senate to mollify the Dinosaur Caucus, led by then-Senator Jefferson Beauregard Sessions III (R-Alabama). At the same time, the legislation was changed at Sen. Sessions’ gentle urging to eliminate retroactivity.

Retroactivity was granted retroactively in Section 404 of the First Step Act, letting people who had been sentenced under the harsh 100:1 sentencing minimums get relief.

Tuesday, the witnesses and members of the Committee are almost uniformly in favor of finally adopting the 1:1 ratio. I say “almost,” because one witness – Steve Wasserman, an assistant US attorney and vice president for defendant oppression at the National Association of Assistant United States Attorneys (actually, “vice president for policy”, which appears to be the same thing) – argued that because crack defendants tend to have more extensive criminal histories and to carry guns, the ratio should not be changed. Chairman Durbin’s rejoinder to Mr. Wasserman was, “The science is not with you.”

cotton171204On the Committee, Sen. Tom Cotton (R-Mongol Empire)* argued that the ratio should be made 1:1, but to achieve that, powder sentences should be increased to match crack offenses. In other words, his solution is 18:18. To say this was the minority view on the committee would be to give Sen. Cotton’s creative if Draconian solution too much credit.

Most notable was testimony given by Regina LaBelle, acting director of the White House Office of National Drug Control Policy. In what was clearly a position approved in the Oval Office, she said that the Biden administration “strongly supports” eliminating the sentencing disparity between crack and powder cocaine.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color,” LaBelle said. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.”

So what would be the practical effect of such a change? When the Fair Sentencing Act passed, the U.S. Sentencing Commission responded by reducing sentencing ranges across the board for crack offenses, so that a five-year mandatory sentence for a defendant without a prior criminal history possessing 28 grams of crack equaled what the Guidelines said his sentence should be. If the ratio falls to 1:1, and if the Sentencing Commission makes the same adjustments, a hypothetical defendant with no prior record (and no sentencing enhancements) would see the following sentencing range adjustments:

chart210624

These are fairly significant. Of course, there is no assurance that the powder ranges would not be adjusted upward a bit (although that is very unlikely), and the Table above does not consider the effects of Guidelines enhancements or more serious Criminal History Categories. But any way you slice it, the sentencing range changes will be substantial.

slip210624There are many ways for this to slip ‘twixt cup and lip. The EQUAL Act could go nowhere, especially if the new crime wave sweeping America makes reform politically unpalatable. It could be amended. The Sentencing Commission is still out of commission without a quorum, and Biden has not yet appointed anyone new. The Commission, if it is functioning, may not make changes under The EQUAL Act retroactive (although that is unlikely, too). And if it is retroactive, defendants will have to apply to their sentencing judges under 18 USC § 3582(c)(2), and the judges could turn them down.

Nevertheless, The EQUAL Act seems to have bipartisan support (Tom Cotton notwithstanding), and the winds – for now at least – are favorable.

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* Sen. Cotton is really from Arkansas, and I mean no disrespect to the people of that great state. I would say that Sen. Cotton – aptly described by one writer as a “bobble-throated slapstick from the state of Arkansas” – has done all the disrespecting of his constituents any group of citizens should have to endure.

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S.79, The EQUAL Act

Senate Judiciary Committee, Examining Federal Sentencing for Crack and Powder Cocaine (June 22, 2021)

Reason, Biden Administration Endorses Legislation to End Crack Cocaine Sentencing Disparity (June 22, 2021)

Washington Post, Biden administration endorses bill to end disparity in drug sentencing between crack and powder cocaine (June 22, 2021)

– Thomas L. Root

Great Clemency Idea Or Stupid Political Stunt? – Update for March 18, 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.

WASHINGTON WEEK: SEEKING CLEMENCY FOR SOME LADIES
"I won!"
“I won!”

Congresswomen Cori Bush (D-Missouri) and Ayanna Pressley (D-Massachusetts) last Friday joined with the National Council for Incarcerated & Formerly Incarcerated Women and Girls’ initiative calling on President Joseph Biden to grant 100 women clemency in his first 100 days in office. Speaking at an event held outside the White House, Pressley told the President “to exercise his clemency authority,” adding he can grant clemency to the 100 women “by the stroke of a pen.”

Vox said several weeks ago that “advocates want Biden to act quickly” on clemency. “They point to epidemics of Covid-19 in jails and prisons, which could be eased if there were fewer people in those settings to spread the coronavirus. And they argue that acting too slowly would repeat the mistakes of Biden’s predecessors, who, if they moved on clemency at all, did so too late during their terms to do the long, hard work of broader reforms.”

clemencyjack161229Acting quickly on clemency is a great idea, but “100 women in 100 days” is nothing but a political stunt. The greatest danger in a proposal like this one is that if Biden knuckles under, 100 inmates get clemency, and then the Administration will check clemency off its “to-do” list, moving on to the next domestic issue. The problem with the clemency system – beyond the obvious, that 14,000 petitions are pending, many for years – is that the arbitrariness and bias of a system that relies on mercy from the very people who make their careers locking up defendants has a systemic infirmity that must be addressed. A political stunt that relies on an alliterative label – ‘100 in 100…’, like there’s something significant about the base-10 number system – simply detracts from the serious work to be done while delivering commonsense mercy in a scattershot and ineffective way.

The well-meaning people behind this have little idea of the effect of their Lafayette Park theatre on the inmates. I have had several emails this week from women inmates informing me that a list of 100 inmates was handed to the President in the Oval Office, and that he was ready to act. They wondered if they were on the list. Oh, if life only imitated rumor…

Why not simply distribute 151,703 scratch-off cards to the BOP population, with only 100 winners among them? That approach would make as much sense, while adding a bit of drama and excitement to the event.

crackpowder160606Last Tuesday, Representatives Hakeem Jeffries (D-New York), Bobby Scott (D-Virginia), Kelly Armstrong (R-North Dakota), and Don Bacon (R-Nebraska) introduced the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act in the House. The bipartisan legislation would eliminate the federal crack and powder cocaine sentencing disparity and retroactively apply it to those already convicted or sentenced.

The measure is identical to the measure introduced in the Senate by Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois) five weeks ago.

USA Today, ‘No justice in destroying lives’: Pressley, Bush call on Biden to grant clemency to 100 women in 100 days (March 12, 2021)

Vox, Biden’s secret weapon for criminal justice reform (March 1, 2021)

Atlanta Daily World, Congress Introduces Bill to Eliminate Sentencing Disparity Between Crack and Powder Cocaine (March 10, 2021)

– Thomas L. Root