Tag Archives: marijuana reform

Trump and the Future of Everything: Today, Marijuana – Update for November 13, 2024

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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 FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

Yesterday, we considered Trump and firearms. Today, it’s marijuana and drugs, followed by sentence reform and clemency tomorrow, and the BOP on Friday.

THE FUTURE OF MARIJUANA

marijuanahell190918For fifty years, the federal government had classified marijuana as more dangerous than opium and fentanyl.

Not anymore: President Biden’s directive two years ago that pot be rescheduled led to a recommendation last spring from Dept of Health and Human Services that marijuana be reclassified as a Schedule 3 drug, down from Schedule 1. The Drug Enforcement Administration has a hearing set for Dec 2 on the proposal and will probably agree. The New Republic said that “Biden’s actions represent what most constitutional scholars agree is the most a president can do.”

On the campaign trail, Trump at several points called for the death penalty for drug dealers, but then endorsed a Florida marijuana legalization ballot initiative (that failed to pass). “As we legalize it (marijuana) throughout the country, whether that’s a good thing or a bad thing, it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal,” Trump said last August. In an online post, Trump said, “I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use.”

Marijuana Moment said last week, “Whether that stated support will translate into action on reform legislation after Trump takes office in January is uncertain.” Republicans will control both houses of Congress, meaning that within reason, Trump can have what he wants. How his epiphany on marijuana will square with his harsh rhetoric on punishing drug dealers has yet to be seen.

mario170628Generally, last week was unkind to marijuana reform efforts in the states, with four states refusing to pass liberalization laws and another – California – and California voters overwhelmingly approving an initiative that restores felony penalties for some drug possession offenses.

“These disappointing developments suggest that the collapse of pot prohibition is slowing,” Reason reported late last week, “that the road to broader pharmacological freedom will be bumpier than reformers hoped, and that the punitive mentality of the war on drugs still appeals to many Americans, even in blue states.”

The New Republic, How the Democrats Blew Their Political Advantage on Legal Weed (November 4, 2024)

USA Today, Does Donald Trump want to legalize weed? Here’s where he stands on marijuana legislation (November 5, 2024)

Marijuana Moment, What Donald Trump’s Presidential Election Means For Marijuana Reform (November 6, 2024)

Reason, This Week’s Election Results Are a Discouraging Sign for Drug Policy Reformers (November 6, 2024)

– Thomas L. Root

Harris and Trump Agree With Each Other… Decriminalize Marijuana – Update for October 29, 2024

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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.

STRANGE BEDFELLOWS

You can tell it’s election season, as presidential candidates stake out positions on every issue (including how nice the island of Puerto Rico might be). Marijuana reform is “the rare bipartisan issue” in this year’s presidential election, according to The Wall Street Journal, that everyone seems to embrace.

marijuana221111Both Donald Trump and Kamala Harris have offered support for easing restrictions. More than half the states have legalized adult marijuana use. The pot industry says more reforms are needed, but these are all in banking, decriminalization of personal-use qualities, and research studies.

What no one’s talking about is changing the federal criminal code on marijuana, let alone retroactively. While reclassification of marijuana as a Schedule III drug, anticipated in the next two months, will mean that some penalties for some offenses will probably be reduced – especially in the Guidelines –violations of the Controlled Substances Act which “apply to activities involving marijuana specifically, such as the quantity based mandatory minimum sentences […] would not change as a result of rescheduling,” the Congressional Research Service said.

As part of her pledge, Kamala Harris said she would take steps to ensure that black men, disproportionately incarcerated and disenfranchised by the war on drugs, would stand to profit from the industry. Harris’s pledge to end marijuana prohibition sets her apart from both Biden and Trump, making her the first candidate to say that prohibition is a priority.

During his administration, Biden made a lot of promises about marijuana, including pardons for simple possession convictions to reschedule pot. Biden has only granted pardons to a small fraction of weed-related convictions during his administration. Biden’s sponsorship of the Violent Crime Control Act of 1994 has left him, rightly or wrongly, with the reputation as being opposed to criminal justice reform.

sessions180119Meanwhile, Trump has changed his tune on marijuana during this election season, taking positions at odds with his record of having appointed anti-drug zealot Jefferson Beauregard Sessions III as his attorney general. But Trump later pushed the First Step Act through Congress, although he has publicly groused that he did it primarily to get black support which he never received.

Advocates and opponents now cross party lines. In Florida, Bradford County Sheriff Gordon Smith — a Republican — made an ad backing that state’s referendum, said Florida Politics. Legalization will “let us focus on serious crime, making our streets and neighborhoods safer,” Smith said. But Gov. Ron DeSantis (R) is fighting the proposal, said NBC News. The one-time GOP presidential candidate is campaigning against the referendum, one observer said, “as if it’s his own name on the ballot.”

Martin Luther King, Jr., once said, “The arc of the moral universe is long but it bends toward justice.” Likewise, the arc of marijuana regulation is long but it bends toward reform. Just not tomorrow and maybe not even next year.

Wall Street Journal, The Rare Bipartisan Issue in This Year’s Election: Recreational Weed (October 21, 2024)

The Week, Is legal weed a bipartisan issue now? (October 23, 2024)

The Guardian, Kamala Harris promises full marijuana legalization – is that a gamechanger? (October 19, 2024)

HeraldNet, Comparing Harris and Trump on crime and justice (October 19, 2024)

– Thomas L. Root

November 1st Promises to be a Quiet Day – Update For August 16, 2024

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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.

MYTHBUSTERS

I might fairly be accused of trotting out the old “Mythbusters” trope every few months or so when I have nothing else to write about. But it’s not so.

mythbusters240816A loyal reader, himself a skilled jailhouse lawyer, urged me several months ago to revisit some of inmates’ most cherished rumors and myths. He was feeling a little beaten down by well-intended questions about how the Loper Bright Enterprises v. Raimondo decision invalidating the Chevron deference doctrine must mean that people with medium and high recidivism scores will now be able to earn First Step Act credits. (Hint: Loper Bright will affect FSA credits not at all).

Others are demanding to know how President Joe Biden’s signing of H.R. 3019 into law would do the same.

It has been a busy summer, however, and although I am getting the usual number of emails asking why the BOP won’t renew the elderly offender home detention program and when the new meth law takes effect, it took this email yesterday to force my hand:

PATRICIA PRISONER on 8/15/2024 at 10:32:58 AM wrote

i have a question concerning the FSA..IN NOVEMBER WHEN THE LAWS COME INTO EFFECT..WILL THE PPL WITH HIGH OR MEDIUM RECIDIVISM BE ABLE TO USE THEIR TIME CREDITS??DO ANYTHING CHANGE FOR THOSE WHO HAVE PROGRAMED BUT WONT BE ABLE TO CHANGE THEIR STATUS TO A LOW???

Aarrgh! Another FSA credit question.

So here we go, by the numbers:

(1)    What will happen on November 1st?

On November 1st, two things will happen. First, Sentencing Guidelines amendments proposed last spring will go into effect, unless Congress blocks them (which it will not).

nothinghere190906The second is that BOP Director Colette Peters will ride up to the front gate of every BOP institution and give one lucky inmate a ride home on the back of her BOP Central Office unicorn.

Only one of the foregoing is true. And it ain’t the unicorn.

Unfortunately, the traditional November 1st date for the effectiveness of sentencing guidelines amendments has attained an almost mythical status on the inmate grapevine commonly known as “inmate.com.” But let’s remember this (covered in high school government class, probably on a day you skipped): The sentencing guidelines, like all government regulations, are NOT laws. Guidelines are written by the Sentencing Commission pursuant to authority granted by Congress. They are advisory only. A judge does not have to follow them. And this year, not a single Guidelines amendment will retroactively apply to people already sentenced. So, the amendments going into effect on November 1 have absolutely no effect on federal prisoners.

Congress has not passed any changes to the federal criminal laws this year. With only about 35 more days of legislative sessions this year for the House and 39 for the Senate (and with elections for all representatives and one-third of the senators), there is no chance that Congress will do anything to benefit federal prisoners.

The misperception that crime is rising is one of the bogeymen of this election cycle. No legislator’s going to vote for something that may benefit maybe 50,000 federal prisoners but gives his or her opponent an opening to argue that the incumbent voted to let dangerous criminals go free. As the politicians say, it’s bad optics.

(2) The BOP is not arbitrarily denying FSA credits to high and medium recidivism inmates.

Under 18 USC 3624(g)(1), in order to use FSA credits, a prisoner must have a “minimum” or “low” recidivism risk or “ha[ve] shown through the periodic risk reassessments a demonstrated recidivism risk reduction.” It is possible for a medium or high recidivism inmate to earn the right to spend FSA credits, but the statute (18 USC 3624(g)(1)(D)(ii)) is very specific about how difficult earning such a right would be.

recidivism240408The important point is that any changes to the FSA credit program – that lets prisoners earn credits to shorten sentences and permit more halfway house/home confinement – that would permit people with high and medium recidivism scores to use their credits, both the House and the Senate would have to pass an amended First Step Act law and the President would have to sign it. It simply is not going to happen this year.

And while we’re on it, why won’t the BOP let people with 18 USC § 924(c) gun charges have FSA credits? Simply enough, it’s because Congress deliberately excluded § 924(c) convictions from eligibility. The BOP’s got no power to change that.

(3) H.R. 3019 was indeed signed by the President, but it is the Federal Prison Oversight Act and has nothing to do with FSA credits.

In the 5½ years since the First Step Act was passed, no one has mounted any serious effort to change the FSA credits. Congress seems content that 63 different categories of offenses (comprising about half of all federal inmates) remain ineligible for FSA credits.

The FPOA is legislation that holds great promise for increasing BOP accountability, but it has nothing to do with the First Step Act in general or FSA credits in particular.

(4) Elderly Offender Home Detention Program has come and gone.

I still get complaints that the BOP is denying people who are 60 years old home confinement at their two-thirds date.

Of course it is. The two-thirds home confinement for 60+ people was the Elderly Offender Home Detention Program, authorized by the First Step Act. It was a pilot program, and was authorized to run until September 30, 2023. When it expired, I wrote about it.

The important point is that Congress set the expiration date. The BOP has no right to waive the expiration date or to extend it. It’s up to Congress, and Congress hasn’t done a thing about it.

(5) When does the new meth law go into effect?

meth240618What new meth law? About 18 months ago, a single district court in Mississippi ruled that the Guidelines enhancement for methamphetamine purity should not be applied because these days, just about all meth is high purity. The judge in question, however, was Carleton Reeves, who happens to be chairman of the Sentencing Commission, making the holding kind of a big deal.

The Guidelines enhancement is based on 21 USC § 841(b)(1)(A)(viii), which sets differing levels for pure meth and a “mixture… containing a detectable amount” of meth. Last June, the Commission released a study showing that meth purity is no longer a reasonable metric for enhancement. The Commission may yet take up the enhancement, although it has not yet committed to do so. However, no real change can be effected until Congress changes the law. Congress has given no indication it is interested in doing so.

(6)    A Basic Government lesson

We should all understand that a “congress” runs for two years. We are in the 118th Congress right now. It ends on January 2, 2025, The 119th Congress begins on January 3, 2025, and ends on January 3, 2027.

When a Congress ends, any bill that is pending but not passed disappears. The 119th Congress starts with a clean slate. This means that any bill currently pending (like marijuana reform, the EQUAL Act, First Step Act changes) will die.

Whether any criminal justice reform legislation makes it through the 119th Congress has a lot to do with who controls the House and Senate and who will be sitting in the White House. If one party ends up controlling all of it (especially the Democrats), some of what has been stalled – such as the Cannabis Administration and Opportunity Act and EQUAL Act — may have a real shot.

– Thomas L. Root

Does Biden Overpromise, Underdeliver on Marijuana Reform? – Update for March 11, 2024

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BIDEN PROMISES ON MARIJUANA HAVE SKEPTICS

marijuana221111Marijuana reform got some billing in President Biden’s State of the Union (SOTU) speech last Thursday, as he highlighted (and perhaps overstated) his Administration’s actions toward pot reform.

Biden noted that he has “direct[ed] my Cabinet to review the federal classification of marijuana” – an action begun in October 2022 and to be completed by the end of this year – and he claimed he is “expunging thousands of convictions for the mere possession because no one should be jailed for simply using or having it on their record.”

The sweep of Biden’s pardons is debatable. “While the pardons have symbolically forgiven convictions, they did not eliminate criminal records entirely,” the Green Mountain Report observed last week. “Additionally, these pardons have not impacted individuals currently serving sentences in federal prisons for marijuana-related offenses that exceed simple possession.”

“Biden made two promises on marijuana reform on the 2020 campaign trail—to decriminalize marijuana use and expunge records—and he has failed to deliver either,” Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, said in a Friday response the SOTU. “Biden’s pardons haven’t released anyone from prison or expunged anyone’s records.”

potscooby180713Reason magazine noted last week that “in 1972, the same year that Biden was elected to his first term in the US Senate, the National Commission on Marihuana and Drug Abuse recommended decriminalization of marijuana possession for personal use. It also recommended that “casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense.”

Fifty-two years later, we’re getting there but slowly. Federal marijuana trafficking cases declined yet again in 2023 as more states legalized the leaf, according to the USSC 2023 Sourcebook of Federal Sentencing Statistics, published last Tuesday. This continues a decade-long trend of pot prosecutions “dropping precipitously amid the state-level reform push and shifting federal enforcement priorities,” Reason said. In 2013, the Feds reported 5,000 cannabis-related prosecutions. Last year, there were under 800.

Last week, The Hill reported on a Pew Research Center finding that more than half of Americans live in a state where recreational marijuana is legal. A full 74% of Americans live in a state where marijuana is legal for medical use.

mcconnell180219Also last week, Senate Minority Leader Mitch McConnell (R-KY) announced he is stepping down from his leadership post in November. McConnell has earned a reputation as an anti-drug senator, despite his work pushing the First Step Act through the Senate and the legalization of hemp in the 2018 farm bill. He has been firmly opposed to even modest marijuana reform. Because the minority leader will run the Senate if his party flips the 51-49 chamber to a Republican majority, the person occupying that position is a hair’s breadth from being able to control what drug reform bills the Senate will take up.

Marijuana Moment, Biden Promotes Marijuana Reform In State (March 7, 2024)

Green Market Report, Biden touts cannabis policy changes in State of the Union (March 8, 2024)

Drug Policy Alliance, The Drug Policy Alliance Responds To The 2024 State Of The Union Address (March 8, 2024)

Reason, Biden’s Inaccurate and Inadequate Lip Service to Marijuana Reform Ignores Today’s Central Cannabis Issue (March 8, 2024)

US Sentencing Commission, 2023 Sourcebook of Federal Sentencing Statistics (March 5, 2024

The Hill, 79% of Americans live in a county with legal cannabis dispensary: report (March 4, 2024)

Marijuana Moment, Is Mitch McConnell Stepping Down Good For Marijuana Reform? It Depends Who Replaces Him (March 5, 2024)

– Thomas L. Root

Drug Pushers: Advocates Press Biden On Marijuana Reform – Update for March 1, 2024

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THE POT PLOT THICKENS

marijuana160818Marijuana advocates last week argued that President Biden is missing an opportunity to sway young voters with his reluctance to take bigger steps to legalize marijuana at the federal level.

The Biden administration has pardoned people convicted of federal simple possession and started a process that may lead to rescheduling marijuana from Schedule I to Schedule III under the Controlled Substances Act. Biden has promised to deliver the rescheduling decision by the end of the year.

However, Biden’s efforts so far have left advocates unimpressed, The Hill reported last week, with the buzz being that he is “falling short of his 2020 campaign promises and failing to address the disparate overcriminalization of the drug that has unduly impacted minority communities.”

Progressives in the Senate are urging Biden to completely deschedule pot, which would effectively decriminalize it federally. “Marijuana’s placement in the [CSA] has had a devastating impact on our communities and is increasingly out of step with state law and public opinion,” twelve Democratic lawmakers wrote to the DEA last month.

And they’re not the only ones. Last week, former heavyweight boxer Mike Tyson, now a marijuana advocate and entrepreneur, sent Biden a letter calling on the Administration to reconcile with communities, including the poor and minorities, who have paid the heavy cost of the War on Drugs.

marijuanahell190918“I write in support of granting clemency to marijuana offenders still incarcerated in federal prison and restoring civil rights to those haunted by a federal marijuana conviction,” the Tyson letter began. “Through a categorical clemency grant you can declare an end to federal warfare on our own people and mark a new era based on peace and prosperity.”

Public opinion is strongly in favor of marijuana legalization. A Gallup poll from November found a record 70 percent of Americans believed marijuana should be legal.

Presidential candidate Trump’s exact stance on pot seems to flip-flop and remain ambiguous. He appointed marijuana-hating Jefferson Beauregard Sessions III as his first Attorney General, but then signed the First Step Act (which he now loves or hates on alternate days).

Biden has not pivoted as dramatically as he claims to have done on marijuana reform. One commentator says, “The people who argue that Biden is “responsible for the most significant marijuana reform in American history”… are right. The people who argue that Biden hasn’t done nearly enough on marijuana reform are also right.”

The Hill, Biden missing opportunity on legalizing marijuana, advocates warn (February 23, 2024)

The Guardian, Mike Tyson urges Biden to free thousands locked up over cannabis: ‘Right these wrongs’ (February 19, 2024)

Harris Sliwoski, Grading the Presidential Candidates on Cannabis (February 20, 2024)

– Thomas L. Root

Pot Ascendent? Federal Marijuana Legalization Effort Resumes – Update for November 9, 2023

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MARIJUANA LEGISLATION RESURRECTED

A bipartisan but Republican-led effort to legalize marijuana federally was reintroduced in Congress last week, just before red-as-a-beet Ohio voters approved recreational marijuana.

marijuana221111Rep Nancy Mace (R-SC), was expected to reintroduce the States Reform Act (H.R. 6028) before Oct 24, when her office refiled a bill “to amend the Controlled Substances Act regarding marihuana.” The bill, which currently has no text, is being sponsored by Representatives Dean Phillips (D-MN), David Trone (D-MD), Tom McClintock (R-CA), and Matt Gaetz (R-FL).

A previous version of Mace’s pot legalization bill introduced in late 2021 would have removed marijuana from the Controlled Substances Act and set a 3.75% federal excise tax on sales.

In the Senate, Majority Leader Charles Schumer (D-NY) says he intends to amend marijuana legislation there to include “criminal justice provisions,” mentioning expungements as he’s done in the past but also citing in the letter additional measures such as resentencing for current federal cannabis prisoners.

New York Times, Ohio Issue 2 Election Results: Legalize Marijuana (November 8, 2023) 

MJBiz Daily, Republican-led federal marijuana legalization effort reappears in Congress (November 2, 2023)

H.R. 6028, States Reform Act

Marijuana Moment, Schumer Emphasizes ‘Moral Responsibility’ Of Adding Criminal Justice Provisions To Marijuana Banking Bill As Republicans Push For Floor Vote (November 2, 2023)

– Thomas L. Root

Ending the Summer With the Rocket’s Red Glare – Update for September 29, 2023

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rocket190620This weekend marks the end of summer, maybe not astronomically or meteorologically, but Monday the Supreme Court begins its next term, called “October Term 2023.”  Fall is here, but first, we’re going to end the summer with a short rocket:

DOES NOT COMPUTE

The BOP announced in late 2022 that it was developing a calculator to project the maximum number of earned-time credits – now being called FSA credits – a prisoner could earn at the outset of a sentence. That way, a prisoner would know upfront his or her projected release date and the date that halfway house or home confinement could begin.

notcompute230929You may have been skeptical, recalling that in 2022, the BOP promised monthly auto-calculation of FSA credits (with more launch dates than North Korea’s missile program) that never happened, either. August became September became October, then November, and finally January. Writing in Forbes magazine last week, Walter Pavlo reported that the BOP has likewise been unable to determine likely dates for prerelease custody, depriving inmates of benefits of FSA credits to which they are entitled by law because the BOP is unable to scramble to arrange halfway house or get residence approval for home confinement.

What’s worse, Pavlo reported, “there is no date for when this calculation issue will be addressed. Until then, prisoners continue to line up outside of their case manager’s office to plead their case that their release date is closer than what the BOP is calculating. As one prisoner told me, ‘My case manager said, ‘the computer tells your release date and it could be tomorrow, or next week, or next year, it does not matter to me. But I don’t have the ability to make that decision myself’.”

The BOP Office of Public Affairs told Pavlo that “credits cannot be applied to an individual’s projected release date until they are actually ‘earned.’ Further, as an individual can earn 15 days of time credits, and as there is no partial or prorated credit, it is feasible that earned credits could be greater than the number of days remaining to serve. However, the earned time credits are ‘in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment.’ Simply stated,” Pavlo said, “the credits are earned, and they cannot exceed the remaining time to serve at the point they are earned.”

bureaucracybopspeed230501The BOP’s position, according to Pavlo, is that “ordinarily, the applicability of time credits towards pre-release custody will be limited to time credits earned as of the date of the request for community placement. However, in an effort to ensure eligible adults in custody receive the maximum benefit, the agency is developing additional auto-calculation applications that will calculate a “Conditional FSA Release Date” and an “Earliest Conditional Pre-Release Date” which would include the maximum FTC benefit.”

Basically, the BOP is still trying to figure out how to implement a First Step program it knew about 5 years ago.

Forbes, Bureau of Prisons’ Challenges With First Step Act Release Dates (September 17, 2023)

rocket190620

SCHUMER MAY ADD CRIMINAL JUSTICE PROVISIONS TO NEWLY-REFERRED MARIJUANA BILL

Fresh from getting the Senate Senate Majority Leader Charles Schumer (D-NY) indicated yesterday that he may attach criminal justice reform language to the cannabis banking bill that just passed the Senate Banking Committee on Wednesday.

Speaking on the Senate floor, he said he was “really proud of the bipartisan deal we produced,” a reference to the Secure and Fair Enforcement Regulation Banking (SAFER) Act, S.1323. And while the legislation will be brought to a full Senate vote “soon,” Schumer promised to include “very significant criminal justice provisions” in it, Marijuana Moment reported.

Schumer didn’t say what those reforms might be noting he would “talk more about that at a later time.”

marijuana-dc211104“Attaching any additional provisions – let alone ones on criminal justice — could imperil SAFER‘s chances of winning Senate approval, according to the finance website Seeking Alpha. “Prior attempts to add criminal justice language into marijuana-related legislation has led to controversy.”

In May, Schumer said a marijuana banking bill would have social justice reforms and criminal expungement language attached. And in 2022, Sen. Cory Booker (D-NJ) said he would favor a “SAFE Banking Plus” bill that includes criminal justice reforms.

Marijuana Moment, Schumer Touts Bipartisan ‘Momentum’ Behind Marijuana Banking Bill That He Plans To Bring To The Floor ‘Soon’ With More ‘Criminal Justice Provisions’ (September 28, 2023)

Seeking Alpha, Schumer indicates he may tie in criminal justice to marijuana banking bill (September 28, 2023)
rocket190620

$117 A DAY WON’T BUY YOU PERFORMANCE

Maybe that’s all the performance you can expect for $117 a day. That’s what the BOP said last week is the current average cost of incarceration based on fiscal year 2022 data. The average annual COIF for a Federal inmate housed in a halfway house for FY 2022 was $39,197 ($107.39 per day).

BOP, Annual Determination of Average Cost of Incarceration Fee (COIF), 88 FR 65405 (September 22, 2023)
rocket190620

HAZELTON BOP UNION SAYS EMPLOYMENT STANDARDS HOBBLE STAFFING AS SHUTDOWN LOOMS

Picket signs waved all day long last Friday as members of the FCC Hazelton local 420 union representing the prison say the staffing shortage has gotten so bad officers have to work 16-hour shifts 4 to 5 days a week, with stringent employment standards partly to blame.

Union President Justin Tarovisky says the prison is currently short-staffed by more than 80 corrections officers. He complained that the union held a recruiting event where they took in 60 applicants, but the BOP office in Grand Prairie, Texas, that oversees these applications has been disqualifying applicants for superficial reasons.

hazeltonpicket230929“A lot of that common sense hiring has left this agency,” Tarovisky told WDTV, a Weston, WV, television station. “They’re handcuffing these applicants that are applying and disqualifying them for simple errors and it’s not our staff that’s disqualifying them, we can’t even get them in the door to interview them because they’re being disqualified by people halfway across the country.”

There have been only 10 new staff hired at Hazelton this year despite the desperate need with some other prison staff members having to take on the duties of corrections officers. Tarovisky says the prison needs to be able to hire applicants directly to keep officers and community members safe.

The grueling hours are taking a toll on prison staff wellbeing and many are feeling the impact at home. A Dept of Justice Office of Justice Programs report in 2020 found that the suicide rate of corrections officers is seven times higher than the national average.

From the “You Think Things Are Bad Now” department: ABC News reports that all 34,537 BOP employees would still have to go to work if the government closes for lack of funding on Sunday, leaving them without a paycheck during the period of the shutdown.

“A shutdown is absolutely devastating for our members,” Brandy Moore-White, the president of CPL-33, told ABC News. “Not only do our members put their lives on the line every single day to protect America from the individuals incarcerated, but now they’re having to go out… and figure out how they’re going to pay their bills and how they’re going to feed their families.”

All government employees are guaranteed pay during the time of the shutdown, but that money is not paid until after the shutdown ends. If you’re living paycheck to paycheck, the promise of money next week does not buy you groceries today.

WDTV, Hazelton Prison corrections officers protesting hiring practices (September 22, 2023)

ABC News, Government shutdown would be ‘devastating’ for Bureau of Prisons employees (September 27, 2023)

– Thomas L. Root

‘Spirit Is Willing But…’ In Federal Drug Reform – Update for August 8, 2023

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NOTHING HAPPENING HERE…

vacation190905If Congress does not approve a new appropriations bill by September 30, the government could shut down. But as anyone who works in or with the federal government knows, the government pretty much shuts down every year for the month of August as legislators, agency heads and government employees leave town for vacations.

This leaves a number of issues important to federal defendants hanging. Two of those are cocaine and marijuana reform.

Before leaving town for the beach, Dept of Justice officials filed comments with the U.S. Sentencing Commission urging the Commission to adopt a number of priorities for the coming year. On the equivalency of powder and crack cocaine, the DOJ urged the Commission (1) to advocate that Congress for passage of the EQUAL Act (S.524 and H.R.1062) to remedy the current disparity between treatment of powder cocaine and cocaine base; and (2) to remind sentencing courts of “their obligation, when considering [18 USC § 3553(a)] sentencing factors, to consider the pharmacological similarities between powder and crack cocaine and whether it is appropriate to impose a variance consistent with the relevant base offense level for powder cocaine.”

You may recall that last October, President Biden directed that the Dept of Health and Human Services lead an effort to reclassify marijuana as something less than a Schedule I drug. That effort includes review by the Drug Enforcement Administration.

marijuana160818Pressed by Rep. Matt Gaetz (R-FL) during a July 27 oversight hearing on DEA, DEA Administrator Anne Milgram told the subcommittee that the agency has not been provided with a definite timeline to review marijuana’s classification. When Gaetz asked Milgram if she would request the timeline from the HHS, she said, “I will ask.”

The rescheduling of marijuana probably won’t be done until late next year. A rescheduling could possibly lead to changes in 21 USC § 841 as to punishment – if not conviction ¬– for marijuana.

DOJ, Letter to Sentencing Commission (July 31, 2023)

Forbes, DEA Head Pledges To Seek Federal Marijuana Rescheduling Review Timeline From HHS (July 31, 2023)

House Subcommittee on Crime and Federal Government Surveillance, Hearing (July 27, 2023)

– Thomas L. Root

Sisyphus and Marijuana Reform – Update for July 13, 2023

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MEANWHILE, CONGRESS IS HARD AT WORK…

Just kidding.

sisyphus230713Sisyphus – who pushed the rock up the hill, for you mythology-challenged readers – was a model of efficiency compared to Congress. That’s generally so, but hardly better illustrated than in the world of marijuana reform.

Marijuana – now known by its preferred pronoun “cannabis” – has nearly reached the top of legislative mountain before. States have OK’d it for medical use and in some places, for recreational toking. I drove through Michigan last weekend, where you can no longer see the forests for the recreational “cannabis” dispensary billboards. But federal recognition of the states’ fait accompli? Not even close.

Forbes last week ran a piece explaining why federal legalization of marijuana (which I figured was a done deal when the 2021 Congress convened) is at least a decade away.

“President Joe Biden isn’t pro-cannabis, nor are any of the other major declared candidates, including former President Donald Trump,” Forbes stated. “Trump said that drug dealers should be executed. Former New Jersey Governor Chris Christie, who opposed cannabis legalization during his first bid for president in 2016 and referred to tax revenue from pot sales as “blood money,” said during a town hall on CNN that he would end parts of America’s drug war, but still opposes legalization. Robert F. Kennedy Jr., who is running as a Democrat and got arrested for marijuana and heroin decades ago, said he would decriminalize weed, but he stopped of supporting legalization.”

Forbes recounted that Morgan Paxhia, co-founder of San Francisco-based cannabis investment firm Poseidon, “was lobbying in Washington, D.C. late this spring when he finally accepted that America’s prohibition on pot is not going to end soon. Any hopes that the Biden Administration will remove marijuana from the list of controlled substances is ‘dead in the water,’ according to the politicians and staffers Paxhia met with. “My feeling of federal legalization is that it could be 10 years or more,” Forbes quoted Paxhia as saying.

potbillboard230713However, writing in Marijuana Moment last week, Rep. Earl Blumenauer (D-OR) noted that the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports is recommending the removal of marijuana from its list of prohibited substances and that the House has passed legislation to enable state-legal cannabis companies to have banking services seven times. Despite the fact this happened last year, when the Dems controlled the House, Blumenauer hopefully writes, “Perhaps this is the final stretch towards ending the failed war on drugs. If the NCAA is issuing a call for a reasonable, rational drug policy, can Congress be far behind?”

Meanwhile, Robert Wood – writing in The Hill last week – argued that justice demanded that the stalled EQUAL Act be passed. Wood, who won a sentence reduction under First Step Act’s Section 404, which made the 2010 Fair Sentencing Act retroactive, argued that the EQUAL Act’s opponents “often fail to comprehend the human aspect of these unjust sentences. We are talking about individuals who have served 10, 15 or even 20 years in prison, with some serving life sentences. These men and women are not statistics; they are our fellow citizens, who have families and communities to return to… The goal of passing the EQUAL Act and ensuring its retroactivity is to rectify the wrongs committed under an unjust system. By providing these individuals with an opportunity for redemption, we embrace the core principles of fairness, equality and justice. As a nation that prides itself on these values, we must not turn a blind eye to the suffering caused by outdated policies.”

No hearings have been held on EQUAL this year, and I suspect that none will happen. Jacob Sullum noted in Reason last week that “Donald Trump can’t seem to decide whether he wants to execute drug dealers or free them from prison. The former president’s debate with himself reflects a broader clash between Republicans who think tougher criminal penalties are always better and Republicans who understand that justice requires proportionality.”

warondrugs211028Trump, who brutal drug warriors like Rodrigo Duterte, the former president of the Philippines, said last fall that “We’re going to be asking everyone who sells drugs, gets caught selling drugs, to receive the death penalty for their heinous acts.” When he repeated that two weeks ago during a Fox News interview, anchor Bret Baier pointed out that a policy of executing “everyone who sells drugs” was inconsistent with Trump’s record as president, which included passage of First Step and clemency aimed at reducing drug penalties that Trump described as “very unfair.” Baier pointed out that Alice Marie Johnson, a first-time, nonviolent drug offender whom Trump granted a commutation and later a full pardon for her participation in a cocaine conspiracy, would have been “killed under your plan,” Baier noted, “as a drug dealer.”

As long as the presidential campaign, which has over 15 months to go, is focused on crime, expect nothing from Congress.

Forbes, Why National Cannabis Legalization Is Still A Decade Away (June 30, 2023)

Marijuana Moment, If NCAA Can End Marijuana Ban, So Can The Federal Government, Congressman Says (July 3, 2023)

The Hill, Justice for all: It’s time to end the discrimination between crack and cocaine sentencing (July 4, 2023)

Reason, Trump Can’t Decide Whether To Free Drug Dealers or Kill Them: The Former President’s Bloody Rhetoric Undermines His Defense of Sentencing Reform (June 28, 2023)

– Thomas L. Root

Marijuana Reform Must Include Criminal Justice Provisions, Schumer Says – Update for June 2, 2023

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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.

SCHUMER PUSHES FOR MARIJUANA CRIMINAL JUSTICE REFORM

marijuana221111Senate Majority Leader Charles Schumer (D-NY), the man who controls what gets voted on in the Senate, again argued last week in a Senate speech that it is critical to add criminal justice reform provisions to a bipartisan marijuana banking bill.

Schumer noted the reintroduction of the Secure and Fair Enforcement (SAFE) Banking Act (S.1323), legislation that would “enable cannabis businesses to access critical banking infrastructure.”

“Just last week, the [Senate Banking Committee] held its first hearing on this legislation,” he said, “And I will also work to make sure we include critical criminal justice provisions to SAFE Banking.”

Schumer intends to schedule a committee vote in the near future to discuss proposed additions.

Rep. Earl Blumenauer (D-OR), who is a lead sponsor of the House version of the SAFE Banking Act (H.R. 2891) and chair of the Senate Cannabis Caucus, said at a recent press briefing that advocates and lawmakers should “align” on any incremental proposals to end the drug war.

Marijuana Moment, Schumer Again Pushes For ‘Critical’ Criminal Justice Amendments To Marijuana Banking Bill (May 19, 2023)

The Crime Report, Senate Majority Leader Schumer Stresses Need for Criminal Justice Provisions in Marijuana Banking Bill (May 19, 2023)

– Thomas L. Root