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Congressional Cannabis Reform Predicted for December – Update for November 29, 2022

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

INTEREST INCREASES IN PASSING MARIJUANA REFORM

marijuana221111While no one is talking about pushing the EQUAL Act (S.79) over the finish line before the current Congress expires on January 2nd, the last two weeks have seen a flurry of activity in marijuana reform raising hopes that legislation that includes relief for people serving pot-related sentences may yet pass the Senate next month.

On November 16, the Senate passed H.R. 8454, the Medical Marijuana and Cannabidiol Research Expansion Act, and sent the bill to President Joe Biden. The bill removes barriers making it difficult for researchers to study the effectiveness and safety of marijuana-derived medicines. When it passed, Senate Majority Leader Charles Schumer (D-NY) – who controls what bills come up for a full Senate vote – said, “I hope after passing this bill the Senate can make progress on other cannabis legislation, too. I’m still holding productive talks with Democratic and Republican colleagues in the House and the Senate on moving additional bipartisan cannabis legislation in the lame duck.”

Marijuana Moment reported last week that “talks are intensifying over a marijuana banking and expungements bill that Senate leadership is working to finalize, with advocates feeling increasingly optimistic about seeing action” during the final weeks of this Congress.

On January 2, 2023, the 117th Congress comes to an end. Any pending bills that have not been passed will be discarded. A new Congress, the 118th, begins the next day. This means the EQUAL Act, the MORE Act, the First Step Implementation Act, and everything else in the legislative hopper will disappear.

lameduck221201The MORE Act (H.R. 3617) (which has twice passed the House), has been stalled because of the Cannabis Administration and Opportunity Act (CAOA), S.4591, a competing bill introduced by Senators Schumer, Ron Wyden (D-OR) and Cory Booker (D-NJ) last summer. A compromise pot bill was blocked from receiving a unanimous consent Senate vote in September.

While the latest signals indicate that compromise legislation will be less wide-ranging than some initially expected, banking and criminal justice reform appear to remain at the center of the talks. The text of any compromise has yet to be released so it remains unclear what will make it into the final bill.

The negotiations in their current form are leading to “unprecedented levels of optimism” about passing a cannabis reform package by the end of the current Congress, one advocate familiar with the status of negotiations told Marijuana Moment.

Colorado Springs Indy, Landmark bill reaches  president’s desk (November 23, 2022)

Marijuana Moment, Congressional Talks On Marijuana Banking And Expungements Bill Intensify As Advocates Push For Equity Amendments (November 23, 2022)

NORML, NORML Deputy Director Testifies on Marijuana Legalization Before House Subcommittee (November 15, 2022)

– Thomas L. Root

Election Leads to Legislative Uncertainty for Pot Reform – Update for November 11, 2022

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

HOPE FOR MARIJUANA REFORM IN CONGRESS DIMS, BUT POT PROGNOSTICATORS SEE A TWO-YEAR HORIZON FOR RESCHEDULING

marijuana-dc211104The Republicans own the House, the Democrats own the Senate. That seems to be the likeliest scenario right now. In the House, the Republicans need seven more seats of the still-contested seats, the Democrats need 26. In the Senate, the Republicans and Democrats each need two of the three yet-undecided races.

A divided 118th Congress is the likeliest outcome. Even so, Marijuana Moment reports, “there would still a range of legislative possibilities for cannabis reform, including (most optimistically) descheduling.”

Because key players like Senate Majority Leader Chuck Schumer (D-NY) and Senate Finance Committee Chairman Ron Wyden (D-OR) are likely to retain their positions and are dedicated to marijuana reform, “they have pretty good leverage over the House if they want to bring them to the table on the issue,” Marijuana Moment reported.

But the Senate is even more unlikely to force a Republican-controlled House to take up a comprehensive legalization bill such as the Cannabis Administration and Opportunity Act (CAOA), S.4591, that the Democrat-controlled House has been to convince the Senate to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, H.R. 3617.

marijuana220412There still could be some Congressional action in the upcoming lame-duck session – which begins on Monday for 17 legislative days before the end of the year – but it’s likely President Biden will want to ramrod as many as his initiatives as he can while he still owns both houses of Congress.

Nevertheless, marijuana advocates among the House membership has scheduled a hearing for Tuesday to discuss bipartisan marijuana reform issues at the federal and state level.

The House Oversight Civil Rights and Civil Liberties Subcommittee posted a notice of the meeting on Tuesday, as voters in states across the country head to the polls to decide on cannabis legalization ballot measures.

The congressional meeting, titled, “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level,” will take place on November 15. Witness have not yet been announced.

It’s not clear if the hearing will focus on any specific pieces of federal marijuana reform legislation, but Rep. Nancy Mace (R-SC), who serves as the GOP ranking member on the panel, previously told Marijuana Moment that she had received a “promise” from leadership that her States Reform Act (SRA), H.R. 5977, would be taken under consideration in the panel.

marijuana221111That legislation would end federal marijuana prohibition while taking specific steps to ensure that businesses in existing state markets can continue to operate unencumbered by changing federal rules. National Law Journal reported last week that a panel of legal experts it consulted marijuana will be re-scheduled as a Schedule II or III drug by January 20, 2025.

Early last month, President Biden ordered government agencies to study removal of marijuana from the Controlled Substances Act drug schedule.

One expert said it is unlikely cannabis will be descheduled altogether. “I don’t think the federal government will be ready by then to relinquish control over a drug it has categorized by the CSA as one of the most dangerous drugs on the streets for over 50 years.”

Marijuana Moment, Here’s What The Midterm Congressional Election Results Could Mean For Federal Marijuana Reform (November 10, 2022)

Marijuana Moment, Congress Will Hold A Marijuana Hearing One Week After Five States Vote On Legalization Ballot Measures (November 8, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

– Thomas L. Root

Biden Marijuana Clemency Brings Forth a Mouse – Update for October 11, 2022

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

BIDEN’S PENURIOUS POT PARDONS

mountainmouse221011President Biden last Thursday pardoned thousands of people convicted of simple possession of marijuana (a 21 USC § 844 offense) and said his administration would review whether marijuana should still be a Schedule I drug like heroin and LSD.

The pardons will clear everyone convicted on federal charges of simple possession in the last thirty years. They will help remove obstacles for people trying to get a job, find housing, apply to college or get federal benefits. Announced a month before the midterm elections, the pardons could help fire up the Democratic supporters.

But they won’t free a single federal inmate.

Officials said full data was not available but noted that about 6,500 people were convicted of simple possession between 1992 and 2021. Only 92 people were sentenced on federal marijuana possession charges in 2017, out of nearly 20,000 drug convictions, according to the U.S. Sentencing Commission. And not a one of them is currently in prison.

You may recall a Biden spokeswoman said in May 2021 that the Administration anticipated starting granting clemency under a new, improved process just before the midterm elections. There’s no sign of a better commutation process anywhere, and as for the clemency list, Aesop would have said, “The mountain has labored and brought forth a mouse.”

Administration officials said there are no people now serving time in federal prisons solely for marijuana possession. The pardon does not cover convictions for possession of other drugs, or for 21 USC § 841 or § 960 charges relating to growing or possessing marijuana with an intent to distribute. Biden also is not pardoning non-citizens who were in the U.S. without legal status at the time of their arrest.

Biden stopped short of calling for the complete decriminalization of marijuana, which is something that Congress would have to do (and could do if the Senate passes the MORE Act). In fact, he largely seems skeptical of marijuana, despite his announcement. He warned that “[e]ven as federal and local regulations of marijuana change, important limitations on trafficking, marketing, and under-age sales should stay in place.”

marijuanahell190918However, he directed his Administration to review how marijuana is legally categorized, which drives the level of sentence. “The federal government currently classifies marijuana as a Schedule 1 substance,” he said, “the same as heroin and LSD and more serious than fentanyl. It makes no sense.”

The Dept of Justice stated, “In coming days, the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon. Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law.”

The Washington Post said, “The Biden administration review of marijuana’s classification level, to be led by Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland, could address long-standing questions over whether the possession of marijuana should ultimately be decriminalized at the federal level.”

Vox reported that Nishant Reddy, a former advisor to Sen. Cory Booker (D-NJ) on cannabis policy, said, “We’re just a few weeks away from midterm elections, so I do think there’s a little bit of strategic political play with this… That being said, it’s an exciting step in the right direction for those who are facing the negative consequences of unfair policing regarding cannabis.”

Attorney David Holland, executive director of Empire State NORML, sees it as Biden working toward cementing his progressive legacy rather than attempting to gain voter support.

“Biden doesn’t stand to gain anything by it, per se. This is only the midterm; he’s got another couple years to go. I think he’s trying to align himself with progressive politics that undo at least some of the harms of the drug war, and to set up a platform for two years from now that shows him to be a leader in causes relating to equity, justice, economic development, and so on.”

marijuana-dc211104Holland believes the more meaningful part of Biden’s announcement is the review and possible change in the federal status of cannabis as a controlled substance. “He’s setting the stage for future action,” says Holland. “There is definitely a paradigm shift coming over the next two years going into the 2024 election.”

Forbes last Friday quoted Andrew Freedman, executive director of the nonprofit Coalition for Cannabis Policy, Education and Regulation, as saying, “This could lead to a full descheduling, but I highly doubt that’s where it would end up. It’s more likely that the process ends up reclassifying marijuana as Schedule II, along with fentanyl, cocaine and methamphetamine, or perhaps Schedule III. If Congress decides to act, it could remove cannabis from the Controlled Substances Act and regulate it like alcohol and tobacco.”

“It’s a good sign that the Biden Administration is acknowledging that the current status quo is nonsensical,” says Freedman. “But I don’t think they’ve laid out a complete vision of where we go from here. There are current state markets that are operating; how do we catch up to that?”

While on the campaign trail, Biden said that marijuana should be decriminalized and that records should be expunged. Earlier this year, Biden granted nine people with federal marijuana offenses clemency.

Maritza Perez, director of the Drug Policy Alliance’s Office of Federal Affairs, said there should be fuller relief for people, including resentencing, expungement and removing immigration consequences. “It’s a step in the right direction, but definitely does not do enough to really help repair the harms of the drug war,” she said.

clemency170206Some federal inmates were harsher: “Federal marijuana inmates say they’re shocked that President Biden’s mass-pardon for pot offenders doesn’t actually help them — telling The Post that the historic clemency amounts to a “rancid” pre-midterm elections stunt and a “slap in the face” that fails to do what Biden promised as a candidate.

There are about 2,700 federal pot inmates, according to a recent congressional estimate, but none will get out because Biden’s pardon applies only to the roughly 6,500 people convicted federally of simple possession, of whom none are in prison, and to unknown thousands more convicted under local DC law.

One inmate told the Post that inmates at FMC Fort Worth “started cheering for us in here for weed” until “the initial glee turned into yet another let-down.”

“Biden fed us rancid hamburger and the media is celebrating as if he served up filet mignon,” an FCI Fort Dix inmate, whose 16-1/2 year marijuana conspiracy sentence ends in 2031, told the Post.

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m elated for [Biden’s] pardon recipients,” but “I can’t wait for those who are currently incarcerated and have survived a historic pandemic under tortuous conditions to get the relief they were promised, as well.”

mario170628Michael Pelletier, a 66-year-old wheelchair-bound paraplegic who got clemency from Trump, told The Post, “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

New York Times, Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law (October 6, 2022)

Associated Press, Biden pardons thousands for ‘simple possession’ of marijuana (October 7, 2022)

LISA, Biden To Ask Fox To Advise On Emptying Henhouse (May 26, 2021)

Washington Post, Your questions answered about Biden’s marijuana pardon announcement (October 7, 2022)\

Dept of Justice, Justice Department Statement on President’s Announcements Regarding Simple Possession of Marijuana (October 6, 2022)

Vox, The most important part of Biden’s surprise marijuana announcement (October 8, 2022)

USA Today, Many Americans arrested for marijuana won’t find relief under Biden’s pardon plan (October 7, 2022)

Forbes, President Biden Says It’s Time To Change America’s Cannabis Laws (October 7, 2022)

New York Post, ‘Slap in the face’: Pot inmates call Biden mass-pardon ‘rancid’ election ruse (October 7, 2022)

– Thomas L. Root

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

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

THE GOOD, THE BAD, AND THE WEIRD

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cannabis Administration and Opportunity Act (S.4591)

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

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

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

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

Senate Judiciary Hearing (July 14, 2022)

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

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

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

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

– Thomas L. Root

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

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

THE YEAR BEGAN WITH SUCH HOPE, TOO…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Clemency: No One Here But Us Turkeys – Update for December 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.

CLEMENCY CRITICISM RISES AS CHRISTMAS APPROACHES

Business Insider noted last week that “at this point in his presidency, Joe Biden has pardoned just two sentient beings: Peanut Butter and Jelly, 40-pound turkeys from Jasper, Indiana.”

turkey211122Not that prior presidents have done much better. Trump, by contrast, had pardoned three at this point in his presidency: two turkeys and one former sheriff. Clinton, Obama, and George W. Bush all waited until at least their second year in office before granting clemency to a human being.

That’s not because Biden can’t find candidates. About 17,000 petitions are pending, 2,000 of which have been filed in the past year.

Last week, Kevin Ring of FAMM, Sakira Cook of the Leadership Conference on Civil and Human Rights, and others met with White House staff to turn up the pressure. The meeting appears to have been frustrating for Ring. During an NPR roundtable last week on criminal justice reform, he noted that Biden has thus far even resisted clemency for CARES Act detainees. “To me, it’s a bellwether,” Ring said. “Because if the administration won’t address this and address it immediately, I don’t know what hope we can have that other things are going to get done.”

NPR noted that the BOP population has increased by about 5,000 since Biden took office.

Progressives in the House of Representatives, unhappy with a clemency system they say is too slow and deferential to prosecutors, last week proposed the creation of an independent panel they hope would depoliticize and expedite pardons.

clemency170206The “FIX Clemency Act,” HR 6234, was introduced last Friday by Rep. Cori Bush (D-Missouri), Vice Chair of the House Judiciary Subcommittee on Crime, Rep. Ayanna Pressley (D-Mass), and Rep. Hakeem Jeffries (D-NY). The bill calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

That might work… if you could convince the President to appoint anyone to it. Last week, Law360 went after Biden for having yet to nominate anyone to the U.S. Sentencing Commission, which is “keeping a potentially key player in justice reform on the sidelines, according to legal experts.”

The article points out that the USSC “hasn’t had a full roster of seven commissioners for nearly half a decade and has lacked the minimum four commissioners needed to pass amendments to its advisory federal sentencing guidelines since the beginning of 2019.” As a result, an agency whose job is to evaluate the criminal justice system’s operations and potentially drive reform has been taken off the field, Law 360 quoted Ohio State University law professor and sentencing expert Doug Berman as saying.

noquorum191016The USSC currently has only one voting member, Senior U.S. District Judge Charles Breyer, who will have to leave next October, regardless of whether anyone has been named to the Commission or not.

During another NPR roundtable last week, NPR reporter Asma Khalid said of criminal justice reform, “You know, I cover the White House. And I will say, I don’t see this as really being an issue at the forefront, at least not from what I’ve heard publicly from them.”

The leadership vacuum is perhaps best reflected in rudderless Congressional action. Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the National Defense Authorization Act. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses, and was widely seen as opening the door to marijuana reform. Last Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

Many would say Biden has not enjoyed a legislative honeymoon, even while owning both houses of Congress. Maybe it’s only a legislative cease-fire, but whatever it is, the 11-month armistice is unlikely to hold for more than another year until Republicans retake at least one chamber. And with Americans’ perception that crime in their local area is getting worse surging over the past year, there will be less interest in criminal justice reform as the mid-terms approach.

Business Insider, Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated (December 8, 2021)

NPR, Criminal justice advocates are pressing the Biden administration for more action (December 9, 2021)

HR 6234, FIX Clemency Act (December 9, 2021)

Press Release, Bush, Pressley, Jeffries Unveil FIX Clemency Act (December 10, 2021)

Law360.com, Biden’s Inaction Keeps Justice Reform Group Sidelined (December 5, 2021)

NPR, No One Has Been Granted Clemency During Biden Administration (December 9, 2021)

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

Gallup poll, Local Crime Deemed Worse This Year by Americans (November 10, 2021)

– Thomas L. Root

Congress Passes on Pot Reform in NDAA Bill – Update for December 10, 2021

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

SENATE MANEUVERS COULD JEOPARDIZE DRUG LAW REFORM

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

POTUS Pot Pardons Possible, CRS Says – Update for November 9, 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.

COULD BIDEN USE BLANKET CLEMENCY ON POT OFFENDERS?

A Congressional Research Service report issued last week concluded that if President Joe Biden’s easiest path to fulfilling his goal of getting the federal government out of marijuana regulation business is to use his clemency power.

marijuana160818While the study concluded that Biden could not lawfully deschedule marijuana as a controlled substance, it nevertheless said the President has substantial control over how the law is enforced and may use his clemency authority at any time “after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: the President may also issue a general amnesty to a class of people.”

In addition, the Report notes, “the President could direct the Department of Justice to exercise its discretion not to prosecute some or all marijuana-related offenses. Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed’.”

The CRS is Congress’s public policy research institute, working primarily for members of Congress and their committees and staff on a nonpartisan basis.

Meanwhile, an article in Inquest last week observed that “there is deeply rooted legal precedent for presidents to use their authority to grant clemency to large classes of people. Presidents have deployed this authority to advance the public welfare, whether following a war or in response to unjust punishments, or simply to help heal a nation torn by crisis… Broad clemency has been issued by presidents George Washington, John Adams, James Madison, Abraham Lincoln, Theodore and Franklin Delano Roosevelt, Harry Truman, Lyndon B. Johnson, Gerald Ford, and Jimmy Carter.”

A lot of people are hoping to see this on the news...
A lot of people are hoping to see this on the news…

Noting that “the federal system… is the single largest incarcerator in the nation,” the article argued “ President Biden can lead by example, embracing categorical clemency as a tool to mitigate the system’s structural injustices… The president can act by issuing categorical clemency through a proclamation to a class of people based on two categories of eligibility: Personal characteristics or membership in a certain group, or shared circumstances. Such a proclamation should contain a presumption that all people who fit the criteria announced by the president will have their sentences commuted unless the DOJ can prove an articulable and current threat of violent harm.”

Of course, all of the foregoing supposes the President will use his clemency power at all. The Administration has thus far said not to expect pardons or commutations prior to late next year.

Congressional Research Service, Does the President Have the Power to Legalize Marijuana? (November 4, 2021)

Inquest, Mass Clemency (November 2, 2021)

– Thomas L. Root

Weed, Yes; Washington, No? – Update for November 4, 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…

An opinion piece in The Hill last week (admittedly written by the political director of NORML, who certainly has no particular point of view) argued that because marijuana is popular, but Congress is not, the Senate should quickly take up and pass the Marijuana, Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3617, which would repeal marijuana prohibition by removing cannabis from the Controlled Substances Act, ending the existing state/federal conflict in cannabis policies.

marijuana-dc211104

The bill passed the full House in the last Congress with a bipartisan vote of 228-164, but died at the end of December when the two-year Congress ended without a Senate vote on the measure.

The Hill piece argued, “Given that Senate Majority Leader Charles Schumer (D-NY) along with Sens Cory Booker and Ron Wyden (D-Ore) have released their own draft proposal to repeal prohibition, which largely includes the MORE Act, it would be prudent for House Speaker Nancy Pelosi (D-CA) along with Leader Steny Hoyer (D-MD) and Whip James Clyburn (D-SC) to again pass the act and demonstrate to the American public that congressional leadership can be responsive to the public’s overwhelming desire to see cannabis legalized.”

potscooby180713That may be overly rosy. Morgan Fox of the National Cannabis Industry Assn, said last week that while the House will probably pass MORE this year, “it doesn’t look like any sort of comprehensive de-scheduling and regulation bill is going to be able to get through the Senate this year, just because of the politics at play. Democrats want something that’s very robust and contains a very strong social and restorative justice provisions. Republicans are not on board with that, even the ones that are pretty staunch supporters of ending federal prohibition.”

He said that watering down the bill would be required to get the 10 Republican votes needed to pass a filibuster in the Senate. “So I think that at this point, we’re really just trying to feel out where lawmakers are and see where we can compromise in terms of bigger legislation,” he said.

The Hill, Reforming marijuana laws before the holidays: A three-pronged approach (October 27, 2021)

Cannabis Administration and Opportunity Act (July 2021)

Insurance Journal, Takeaways from Our Conversation on Federal Legalization (October 26, 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