We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
NOTHIN’S HAPPENIN’ HERE
Every week, I get a lot of emails from people like this one this morning:
“I am sorry, I know that everyone sends you messages asking for information about the bills in the house and senate, but i have to ask. Have you heard anything about the prohibiting punishment of acquitted conduct act?”
People are always just wanting “an update” on bills pending (or on bills they just imagine are pending) in Congress.
My answer is always the same: if anything is going on with one of these bills, I will cover it in the newsletter. If I haven’t mentioned it, nothing’s going on.
Like last week. Nothing went on last Monday. And after Tuesday’s horrific shooting in a Uvalde, Texas, school, Congress’s focus turned to anguished sound bites and to what feel-good knuckle-headed legislation might be passed in response. Think I’m over-reacting? Ask “One-Door” Ted Cruz. Or “High-Caliber” Joe Biden.
But, as for criminal justice reform, here’s an update on legislation:
EQUAL Act: Senate Majority Leader Chuck Schumer held a news conference in front of the Second Circuit courthouse in New York City to call on lawmakers to support the EQUAL Act (S.79), which would end the sentencing disparity between crack and powder cocaine that has had a disproportionate effect on black defendants.
In September, the House passed the bill 361-66, which ends a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. Since then, the Senate Judiciary Committee has approved the bill, sending it to the Senate floor for a vote.
The New York Daily News reported that Schumer, “who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor.”
Senators Rob Portman (R-OH) and Cory Booker (D-NJ) are sponsoring the bill, which has 21 cosponsors, 11 of the Republican. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer said last Monday. “We want to get this done as soon as we can.”
But all is not roses. At the end of April, Sen Charles Grassley (R-IA) introduced the SMART Cocaine Sentencing Act (S.4116), which cuts the crack-powder ratio to 2.5 to 1 and puts retroactivity decisions in the hands of the Dept of Justice. While the bill only has three cosponsors, it is generally seen as being intended to be a bargaining chip, to be used during floor debate to water down EQUAL.
Marijuana: Nearly every House Democrat and three House Republicans voted in April to pass the MORE Act (H.R. 3617). It would decriminalize marijuana, something 27 states and the District of Columbia have already done.
Meanwhile, expectations are wavering over a marijuana legalization bill in the Senate. Most of the pressure for cannabis reform is coming from state financial regulators, who last week urged Congress to pass marijuana banking reform as part of a large-scale manufacturing bill that’s currently being finalized in conference committee. In a way that would be helpful, because marijuana criminal reform has been held hostage to the problems state dispensaries have in accessing the banking system.
Experts predict, however, that the MORE Act won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who has said that he is unsure about legalizing adult-use marijuana.
Much of the slowdown in criminal justice reform results from violent crime rates nationwide, which have cooled the reformers’ ardor. Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.
Guns: Note to people who email me asking when Congress is going to reform the 18 USC 924(c) possession of a gun during drug and violent crimes statute. The rising violent crime rates – not to mention mass shootings in Buffalo and Uvalde, Texas, pretty much guarantee that no one is going to call for changes in 924(c) that will benefit defendants.
New Legislation: One bill introduced last week is good for federal prisoners. The Family Notification of Death, Injury, or Illness in Custody Act of 2022 (already introduced in the House as HR 6296), would require the DOJ to establish guidelines for the Bureau of Prisons and state correctional systems to notify families of incarcerated people if their loved one has a serious illness, a life-threatening injury or if they die behind bars.
The bill’s introduction in the Senate last Thursday comes more than two years after the Associated Press reported that BOP had ignored its internal guidelines by failing to notify the families of inmates who were seriously ill with COVID. The legislation – introduced by Sens. Jon Ossoff, D-Ga., and John Kennedy, R-La. – is “the latest step by members of Congress to further oversight of the beleaguered federal prison system, which has lurched from crisis to crisis in recent years,” AP reported.
New York Daily News, Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’ (May 23, 2022)
S.4116, SMART Cocaine Sentencing Act
Gray DC, Cannabis legalization remains stalled on Capitol Hill (May 26, 2022)
Vigour Times, How Criminal Justice Reform Fell Apart (May 26, 2022)
AP, Senate bill would set up medical notification to inmates’ kin (May 23, 2022)
– Thomas L. Root
Senators Jon Ossoff (D–GA) and John Kennedy (R–LA) have reintroduced legislation that would require the Dept of Justice to issue guidance to the Federal Bureau of Prisons for promptly notifying families when federal prisoners become seriously ill, suffer life-threatening injuries, or die, as a “basic human dignity of incarcerated people, a concept rooted in the Eighth Amendment and Due Process Clause of the 14th Amendment…”
The BOP stated that its policy is to notify next-of-kin when a prisoner dies. However, Reason has reported that families have “described delays in being notified that their incarcerated loved one had been hospitalized, or even died; having their phone calls ignored; not being allowed to see their loved one in their final moments; delays in being sent the body and death certificate; being given inaccurate or incomplete information about the manner of death; or waiting months and years for the Bureau to fulfill their public records requests for more information about how their loved one died.”