Tag Archives: MORE Act

Where Underperformance is ‘Success’ – Update for February 16, 2023

February 16, 2023 lisa-legalinfo Leave a comment

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

BIDEN TOUTS ‘SUCCESSES’ BEFORE SOTU, BUT FAILS TO DELIVER IN SPEECH

The White House touted its policies and accomplishments — including marijuana pardons, drug sentencing reform, harm reduction and enhanced enforcement for fentanyl — ahead of last week’s State of the Union speech, but then proceeded to say nothing in the speech itself about drug policy reform.

The White House promised in a factsheet that the president would “highlight progress” on criminal justice issues during the speech and included a section that directly discussed tackling the “failed approach to marijuana and crack cocaine.” But nothing was said during SOTU about it.

And little wonder. The Biden Administration’s record is one of ‘overpromise, underperform.’ Case in point? For all of the White House hand-wringing about the adverse effect on minorities of the statutory sentencing penalty for crack cocaine being much greater than powder cocaine, the EQUAL Act collapsed due to Senate wrangling at the end of the last Congress.

Marijuana reform? Is that what one calls grant pardons to people who aren’t in prison and have convictions for simple pot possession? Or is that one calls the MORE Act, which breezed past the House last session but died in the Senate because Biden couldn’t corral members of his own party who wanted to tinker with it?

President Biden – an old hand at Senate procedure himself – could not get two bills passed the Senate when both had overwhelming support.

Is this what success looks like?

The Fact Sheet says “the Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive. This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity. As an initial step, the Attorney General has issued guidance to federal prosecutors on steps they should take to promote the equivalent treatment of crack and powder cocaine offenses, but Congress still needs to act….”

And Biden needs to lead, not just posture.

Biden’s pardon proclamation, which affected several thousand people who’ve committed federal cannabis possession offenses but not a single one in prison, “lifts barriers to housing, employment, and educational opportunities,” the Fact Sheet boasted.

A White House official said Thursday that Biden promises that “every jail and prison across the nation can provide treatment for substance use disorder.” By this summer, he said, the BOP will ensure that each of its 122 facilities are equipped and trained to provide in-house medication-assisted treatment.”

White House, FACT SHEET: The Biden-⁠Harris Administration’s Work to Make Our Communities Safer and Advance Effective, Accountable Policing (February 6, 2023)

Marijuana Moment, White House Touts Biden’s Marijuana Pardons In Preview of State of The Union Speech (February 7, 2023)

WHIO-TV, Biden wants to make opioid antidote as widely available as ventilators, drug official says (February 9, 2023)

– Thomas L. Root

Blue Christmas for Criminal Justice Reform – Update for December 27, 2022

December 27, 2022 lisa-legalinfo Leave a comment

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

SENTENCE REFORM DIES WITH 117TH CONGRESS

Sentencing reform is dead for another two years.

bluechristmas221227 Of all the criminal justice reform bills in Congress – the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), the COVID-19 Safer Detention Act (S.312), the Prohibiting Punishment of Acquitted Conduct Act (S.601), the EQUAL Act (S.79) and the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – exactly none made it past the Senate during the two-year Congress that ends in a week. Zero. Zip. Bupkis.
With both the House nor Senate closed for a Christmas-Passover-Kwanzaa-New Year’s vacation until next Tuesday, the 117th Congress is done. It’s the legislative equivalent to taking a knee in the final minute of a football game. The clock’s running out.

It was clear last summer that the First Step Implementation Act, the Smarter Sentencing Act, the COVID-19 Safer Detention Act (and the Prohibiting Punishment of Acquitted Conduct Act were going nowhere. But some marijuana and cocaine reform – even though it was not quite what was in the MORE Act and EQUAL Act that passed the House – looked likely as late as last week. However, despite bipartisan support for both bills, Senate Republicans shot them down, but with plenty of help from Senate Democrats and the Biden Administration.

As for marijuana, the Senate’s failure to act comes as a repudiation of Biden’s efforts for pot reform. In October, the president pardoned thousands of people convicted of simple marijuana possession (although no one pardoned was in federal prison) and said his administration would review how the drug is categorized.

The MORE Act would have allowed cannabis companies to open bank accounts and would have retroactively permitted changes in pot-based sentences. But efforts were severely hobbled last fall when Senate Majority Charles Schumer (D-NY), Sen Cory Booker (D-NJ) and Sen Ron Wyden (D-OR) introduced their own version of weed reform, the Cannabis Administration and Opportunity Act (S.4591).

Either MORE or CAOA would have been good for prisoners, but Democratic leadership’s push of an alternative bill diluted the groundswell of support needed to get MORE passed. By last week, the only hope was for banking reform – nothing for federal prisoners – but even that was exempted from last week’s giant end-of-year spending bill, the last chance it had for passage.

If anything, the EQUAL Act’s failure was a bigger disappointment. Aimed at reducing the disparity in sentencing for crack versus powder cocaine offenses by making crack and powder sentences the same, it would have benefitted thousands of prisoners with retroactive relief. EQUAL passed the House with bipartisan support and had what seemed to be a veto-proof majority of 50 Democrat supporters and 11 Republican Senate co-sponsors.

Then, Sen Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee and introduced his SMART Cocaine Sentencing Act (S. 4116), which watered down EQUAL and put retroactivity in the hands of the Dept of Justice.

Still, EQUAL had a chance until Sen Tom Cotton (R–AR) single-handedly stopped the Senate from considering the bill last Wednesday. EQUAL, like the marijuana-friendly SAFE Banking Act was proposed as an addition to the catch-all spending package, an effort that Cotton frustrated.

Sen. Booker then sought unanimous consent to release the stand-alone version of the EQUAL Act from the Senate Judiciary Committee. Sen. Cotton, a hardline prohibitionist described by Beforeitsnews.com as someone “who has never met a drug penalty he thought was too severe,” objected. Sen. Booker’s “hail Mary” fell short.

Still, it appeared up until a week ago that some crack cocaine relief would be jammed into the giant end-of-year spending bill. Reuters reported a week ago that Senate negotiators had reached a potential compromise.

But then, Attorney General Merrick Garland picked the middle of the negotiations to issue a memo directing federal prosecutors to “promote the equivalent treatment of crack and powder cocaine offenses” in two ways. If they decide that a mandatory minimum should be charged, they should “charge the pertinent statutory quantities that apply to powder cocaine offenses.” And at sentencing, “prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine.”

Grassley was enraged, blasting the Garland memo as demanding that “prosecutors ignore the text and spirit of federal statutes [and] undermining legislative efforts to address this sentencing disparity.” And just like that, when the text of the 4,000-page, $1.7 trillion spending bill was released, the watered-down EQUAL Act was nowhere to be found.

“It is a searing indictment of a broken Beltway when a bill that passed the House with an overwhelming bipartisan vote, endorsed by law enforcement and civil rights leaders alike, with 11 Republican co-sponsors and filibuster-proof majority support in the Senate, and an agreement between the relevant committee Chairman and Ranking Member for inclusion in the end-of-year package, fails to make it to the President’s desk,” Holly Harris, president and executive director of the Justice Action Network, said. “The American people deserve better.”

FAMM vice president Molly Gill wants to see the EQUAL Act reintroduced next session. The politics are hard to predict: Democrats have one more seat in the Senate, while Republicans will take narrow control of the House.

The fact that a large number of House Republicans joined Democrats in passing the EQUAL Act last year is not reassuring: the trick will be getting a Republican speaker – who controls what comes up for a vote – put the bill in front of the chamber.

Any bill now pending in the House or Senate that has not passed will disappear on Jan 3, when the new 2-year Congress – the 118th – convenes. And we will start all over again, but with a much unfriendlier House of Representatives.

New Republic: Three Incredibly Popular Things That Congress Chose to Leave Out of the Spending Bill (December 20, 2022)

Reason, Congress Yet Again Fails To Pass Crack Cocaine Sentencing Reforms (December 20, 2022)

Marijuana Moment, Schumer’s “last ditch” cannabis banking push (December 19, 2022)

Reason, Merrick Garland’s New Charging Policy Aims To Ameliorate the Damage His Boss Did As a Drug Warrior (December 19, 2022)

Beforeitsnews.com, The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction (December 22, 2022)

Filter, The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity (December 21, 2022)

– Thomas L. Root

Criminal Justice Reform Efforts Die In 117th Congress With a Whimper – Update for December 20, 2022

December 20, 2022 lisa-legalinfo Leave a comment

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

SENATE CRACK COMPROMISE AND POT REFORM ARE DEAD

As of last Thursday, negotiators in the Senate had reportedly reached a tentative deal to narrow sentencing disparities between crack and powder cocaine from 18:1 to 2.5:1. Then, enter Merrick Garland…

First, the compromise: Reuters reported that its sources said senators planned to tuck the measure into a bill funding the government. Under the deal reached, the crack/powder weight disparity would be narrowed to 2.5 to 1, but the change would not be retroactive. The Senate would attach the change to a year-end spending bill, which has been delayed for another week.

The compromise is the death knell for the EQUAL Act (S.79), which would have made crack and powder equal in sentence severity and would have been retroactive. EQUAL, which passed the House last year, has been in trouble in the Senate since Sen. Charles Grassley (R-IA), the highest-ranking Republican on the Judiciary Committee, introduced the SMART Cocaine Sentencing Act (S.4116), which embodied the 2.5-to-1 ratio. proportion instead.

Then, the Dept of Justice: The compromise was shaky even before the DOJ announced relaxed crack charging policies last Friday. Those changes angered Sen. Grassley, who warned that “it undermines legislative efforts to address this sentencing disparity.” Yesterday, the compromise seems to have gone to hell.

Two sources told Reuters yesterday that even the 2.5:1 negotiations have stalled. After Friday’s DOJ announcement, Senate Minority Leader Mitch McConnell (R-KY) joined Sen. Grassley in opposing the compromise. One source told Reuters that last-minute negotiations to tuck the measure into the year-end spending bill continued yesterday morning, but “inclusion was no longer seen as likely.”

At this point, neither the EQUAL Act nor retroactivity nor even the watered-down SMART Cocaine Sentencing Act has any chance to pass in this Congress. Why the Attorney General had to choose Friday to stick his thumb in Chuck Grassley’s eye is anyone’s guess.

Marijuana reform this year is equally dead. Last Thursday, Sen Sherrod Brown (D-OH), who chairs the Senate Banking Committee, signaled that marijuana reform might be on hold until the next Congress in 2023. The modest changes being considered now do not address any criminal justice reform. Brown told Marijuana Moment he is interested in the “expanded SAFE Plus bill that Senate leadership has been finalizing because it’s expected to go beyond simple banking reform and also contain other provisions dealing with expungements and more.”

Today, Marijuana Moment reported:

Congressional staffers confirmed to Marijuana Moment that cannabis banking language is not being included in the omnibus appropriations bill despite a final push by Senate Majority Leader Chuck Schumer (D-NY) and other supporters from both parties. Advocates will now look ahead to 2023 and the possibility of advancing the cannabis reform in a divided Congress.

Sen Cory Booker, (D-NJ) said last week that Sen. McConnell is standing in the way of the lame-duck Congress passing any marijuana-related bills before the end of the year. NJ Advance Media reports that McConnell’s opposition to any marijuana bill “is giving Senate Republicans who support the measure cold feet, said Booker, who is helping to lead the effort to enact legislation before Republicans take control of the House in January and most likely prevent any bill from passing in the next two years.”

Congress is not completely impotent when it comes to prison and criminal justice reform. Last Wednesday, the House passed The Prison Camera Reform Act (S.2899) – approved by the Senate last year – and sent it to President Biden for signature. The bill requires the Bureau of Prisons to fix broken surveillance cameras and install new ones, “providing upgraded tools to fight and investigate staff misconduct, inmate violence and other problems,” according to industry publication Corrections1.

Reuters, U.S. Senate set to address cocaine sentencing disparity in funding bill (December 15, 2022)

Reuters, U.S. Senate Talks on Cocaine Sentencing Reform Hit Roadblock (December 19, 2022)

SMART Cocaine Sentencing Act (S.4116)

Marijuana Moment, Key Senate Chairman Signals Marijuana Banking Will Wait Until 2023, Says There’s ‘Interest In The Republican House’ (December 15, 2022)

Marijuana Moment, Cannabis banking left out of omnibus (Newsletter: December 20, 2022)

NJ.com, Mitch McConnell is blocking all marijuana legislation in Congress, N.J.’s Booker says (December 15, 2022)

Prison Camera Reform Act of 2021 (S.2899)

Corrections1, Congress passes Prison Camera Reform Act (December 16, 2022)

– Thomas L. Root

Hopes for Marijuana Criminal Justice Reform In This Congress May Be Dead – Update for December 6, 2022

December 6, 2022 lisa-legalinfo Leave a comment

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

“REEFER MADNESS” AS SENATE DEMOCRATS SELL OUT ON POT CRIMINAL JUSTICE REFORM

It turns out not to matter that voters want cannabis reform, or that the MORE Act has passed the House and probably could have passed the Senate by a filibuster-proof majority, or even that Senate Majority Leader Charles Schumer said just a few weeks ago that he was pushing for marijuana reform this year.

On Saturday, Axios broke the news that Schumer would bring the Secure and Fair Enforcement Banking Act (H.R. 1996) to a vote, giving up on comprehensive reform that included expungement of federal marijuana trafficking convictions. The compromise legislation does not legalize marijuana on a federal level, leaving pot as a Schedule I drug, like heroin and LSD.

The MORE Act (H.R. 3617) is dead. The replacement Cannabis Administration and Opportunity Act (S. 4591) – which also included retroactive expungement of federal marijuana convictions – also appears to be dead. The only measure that could include any criminal justice reform is the National Defense Authorization Act (H.R. 8900), which the House may use as a vehicle for drug criminal justice reform.

Instead, Democrats in the Senate will push to liberalize banking access to the cannabis industry. The SAFE Banking Act would provide a “safe harbor” for regulated banks to work with cannabis firms in states where cannabis is legal.

Schumer says he will “more than likely” attach the legislation to a must-pass year-end bill like the NDAA, which gets a vote annually. The House of Representatives attached the EQUAL Act (H.R. 1693) to the NDAA last July 19 with bipartisan support, but no one is talking about the Senate doing the same.

Ironically, the Schumer package also reportedly includes the Harnessing Opportunities by Pursuing Expungement Act of 2021 (H.R. 6129), known as the HOPE Act. According to a bill summary, the measure “authorizes the DOJ to make grants to states and local governments to reduce the financial and administrative burden of expunging convictions for state cannabis offenses.” In other words, Congress will authorize money to help states expunge marijuana convictions, but it won’t lift a finger to expunge federal convictions.

Yesterday, House lawmakers delayed committee consideration of the NDAA amid disagreements over key issues. Democratic leaders had hoped to see the NDAA advance with marijuana reform provisions attached.

The House Rules Committee was expected to take up the NDAA on Monday, but Chairman Jim McGovern (D-MA) deferred consideration, saying the “package is not ready yet.”

Abandonment of cannabis criminal justice reform by the Senate Democrats – who torpedoed the MORE Act to begin when Sen Cory Booker (D-NJ), Sen Ron Wyden (D-OR) and Schumer introduced the alternative CAOA – came at the end of a week in which the New York Times criticized last month’s Biden mass pardon of people with marijuana simple possession convictions. The Times reported, “And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.”

The Times observed that Biden was a “champion of aggressive drug laws earlier in his career, including the 1994 crime bill that led to mass incarceration,” although “he has more recently embraced leniency for those convicted of minor drug offenses.” Biden has said he does not support legalizing marijuana, “putting him at odds with 80% of self-described Democrats and 68% of Americans, according to a Gallup poll released this month,” The Times said.

The SAFE Banking Act is an incremental change in cannabis laws, being rolled out just as Marijuana Moment editorialized for taking such an approach. “It’s time to acknowledge that incrementalism is not selling out, it is not crumbs, and it is not failure,” the website said last week. “Failure is continuing to lock up our citizens while we quibble over who gets the spoils of a post-prohibition world.”

This leaves the Dept of Health and Human Services study rescheduling marijuana as the best hope for any change leading to sentencing reform. Last month, the National Law Journal reported that a panel of consulted legal experts estimated that marijuana will be rescheduled as a Schedule II or III drug by January 20, 2025.

Axios, Scoop: Senate plots pro-pot move for lame-duck (December 3, 2022)

Guardian, Senate Democrats to reportedly push banking reforms for cannabis industry (December 3, 2022)

Fox Business News, Senate aims to attach major marijuana legislation to end-of-year ‘must-pass’ bills: report (December 3, 2022)

Catholic News Agency, Bishops urge passage of bill that would give same sentences to crack and powder cocaine offenders (August 11, 2022)

Marijuana Moment, Democrats’ Focus On Social Justice Marijuana Bills Has Blocked Achievable Progress On Reform (December 2, 2022)

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

Marijuana Moment, Fate Of Marijuana Banking Reform Uncertain As Lawmakers Delay Defense Bill Consideration Amid Disagreements (December 5, 2022)

– Thomas L. Root

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

November 29, 2022 lisa-legalinfo Leave a comment

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

While 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.

The 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

Federal Criminal Justice Reform May Still Have a Pulse – Update for November 14, 2022

November 14, 2022 lisa-legalinfo Leave a comment

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

STILL HOPE FOR CRIMINAL JUSTICE REFORM

As of today, the Democrats have retained control of the Senate and may even keep the House of Representations (although that is still up in the air). In the House, the Republicans still need six seats to win while the Democrats need 13, but that’s a far cry from last Thursday, when the Dems were down 36 seats to the Republicans’ 7-seat deficit.

Reason reported that “while rising crime created headwinds for candidates who supported criminal justice reform, the apocalyptic reaction never quite materialized… Despite predictions that rising violent crime would sink candidates that backed criminal justice reforms, those candidates mostly survived Tuesday night’s elections.”

So there remains a glimmer of hope that criminal justice reform issues that remain unfinished as of the end of this Congress in January will be resurrected for the next 2-year legislative session.

At the same time, there are hints that the lame-duck session – which begins today for at least another 17 legislative days before Christmas – will take up two bills ready for Senate passage, the EQUAL Act (S.79) and MORE Act (HR.3617)

Princeton University Professor Udi Ofer, former ACLU Deputy National Political Director, said last Thursday that in “the lame duck session… I can see some popular bipartisan reforms pass Congress, including on criminal justice reform. The EQUAL Act, which would end the sentencing disparities between crack and powder cocaine, has more than 10 Republican co-sponsors in the Senate so it can withstand a filibuster and seems ripe for some action this lame-duck session. Same could hold true for federal marijuana reform.”

Last Monday, President Biden – who looks a lot stronger today than he did a week ago – again called on Congress

to end once and for all the racially discriminatory crack-powder cocaine sentencing disparity and make the change fully retroactive. This step would provide immediate sentencing relief to the 10,000 individuals, more than 90% of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.

As we reported last week, even if the next Congress is divided, Marijuana Moment said, “there would still be 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.

Washington Post, Democrats keep control of the Senate with win in Nevada (November 12, 2022)

Real Clear Politics, 2022 House Races (November 14, 2022)

Reason, The Crime Backlash Mostly Failed To Materialize on Election Night (November 9, 2022)

Princeton University School of Public and International Affairs, SPIA Reacts: Scholarly insights on the mid-term elections (November 10, 2022)

The White House, The Biden-⁠Harris Administration Advances Equity and Opportunity for Black Americans and Communities Across the Country (November 6, 2022)

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

– Thomas L. Root

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

November 11, 2022 lisa-legalinfo Leave a comment

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

The 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.”

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.

There 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.

That 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

Nope to Dope Reform? – Update for October 24, 2022

October 24, 2022 lisa-legalinfo Leave a comment

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

EVERYBODY’S TALKIN’ AT ME…

With mid-term elections – where control of both the House and Senate are in play – upon us, voters across the country can’t escape the deluge of candidates talking about how extreme their opponents are, how inflation, crime and taxes are out of control… In fact, they’re talking at us about everything.

Everything except criminal justice reform. The only mention that incarcerated people have been getting are occasional disingenuous attacks on incumbents who “vot[ed] to send COVID-19 stimulus checks to people who are incarcerated.” No one is talking about changing drug policy, even about the easiest lift, marijuana reform.

A recent Brookings Institution study found that 86% of Congressional candidates “either made no mention, staked out an unclear position, or explicitly opposed cannabis reform.” The report concluded that “most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years. And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.”

This does not bode well for the MORE Act – already passed by the House – which must be passed by the Senate before the end of December. Any pending bill not passed by then disappears with the end of the 117th Congress. The 118th Congress begins in January with no bills in the hopper, meaning that measures like the EQUAL Act (S.79) and MORE Act (H.R. 3617) – as well as anything else pending – must start over.

The NAACP’s board of directors approved a resolution last Thursday calling for the “immediate passage” of a marijuana banking bill and expressing support for decriminalizing cannabis. The vice chair of the NAACP Board group is specifically directing the message at Senate Majority Leader Chuck Schumer (D-NY), who has held up House-passed legislation on the issue.

However, while NAACP backs ending marijuana prohibition, it wants Congress to use the bipartisan momentum behind incremental reform and quickly pass the Secure and Fair Enforcement (SAFE) Banking Act, H.R. 1996, which has already cleared the House.

At this point, Biden’s order to federal agencies to review marijuana’s Schedule I status may provide a quicker path to decriminalization. The Dept of Justice and Dept of Health and Human Services have committed to expeditiously carrying out the scientific review, which could result in a recommendation to schedule marijuana at a lower level or remove it altogether, effectively legalizing the plant.

Inimai Chettiar of the Justice Action Network wrote in Newsweek last week that “Congress could classify marijuana as a much lower scheduled drug, effectively reducing criminal penalties. Better yet, it could decriminalize marijuana and leave the issue to the states. Both steps have strong bipartisan support among lawmakers and voters alike.”

Unfortunately, translating public support into Senate action – even on EQUAL and MORE – in the brief period between mid-term elections and the end of the year is a tall order. And if the next Congress has one or both Houses controlled by Republicans, you can pretty much write off Congressional cooperation with a Democrat in the White House.

NPR, Politifact VA: Spanberger voted to send COVID checks to prisoners. So did Republicans (October 17, 2022)

JDSupra, Cannabis & the Mid-Terms: What Tax Policy? (October 18, 2022)

The Marshall Project, Don’t Expect Mass Prison Releases From Biden’s Marijuana Clemency (October 15, 2022)

Marijuana Moment, NAACP Calls For ‘Immediate Passage’ Of Marijuana Banking Bill And Pushes For Legalization In New Resolution (October 21, 2022)

Marijuana Moment, Congressional Researchers Lay Out Marijuana Options For Lawmakers Following Biden’s Scheduling Directive (October 20, 2022)

Newsweek, Biden’s Marijuana Executive Order Is a Big Step, But There’s Much More to Do | Opinion (October 21, 2022)

– Thomas L. Root

Clock Running Out on Drug Reform – Update for October 14, 2022

October 14, 2022 lisa-legalinfo Leave a comment

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

EXPERTS PESSIMISTIC ABOUT MORE ACT, EQUAL ACT

Even as a record 68% of the country favors marijuana legalization, according to a recent Gallup poll, a cannabis industry reporter last week said passage of the MORE Act or something else that decriminalizes marijuana is a long way off. “Five experts on politics in the weed industry I spoke with mostly agreed,” Sean Teehan wrote, saying the largest hurdles are a gridlocked Congress, a lack of political incentives for lawmakers to support legislation – or significant pro-cannabis reform – and an absence of consensus on what legislation should look like in practice.”

According to John Hudak, deputy director of the Center for Effective Public Management and the senior fellow in governance studies at the Brookings Institution, the main reason legislation is extremely unlikely to pass in the current congressional session ending on Jan 6, 2023, is that the issue simply doesn’t have enough support in the Senate.

“The votes just aren’t there – they’re barely there in the House. Democrats don’t even have the 50 votes in the Senate for it, and they need 60,” Hudak said.

The situation doesn’t look brighter following the November elections, said Jay Wright, a partner at an Alabama law firm and editor of the National Law Review. “I think if you see Republicans take the House in this upcoming midterm I think it’s going to be a gridlocked government and I don’t know if this is going to be the kind of issue that’s going to be on the front burner,” Wright said.

The EQUAL Act has been attached to the House version of the National Defense Authorization Act by Rep Mikie Sherrill (D-NJ). The amendment is one of a large number of riders attached to the NDAA, few of which ever survive passage of the annual appropriations bill.

“Whether senators will go along with enacting any of these reforms in the final bill remains to be seen,” Marijuana Moment reported last week, “but they would not be included under Senate leaders’ proposed amendment to entirely substitute the language of the House bill with the chamber’s own approach that will be considered when lawmakers return to Capitol Hill after the midterm elections.”

In fact, some suggest that the President’s administrative review of the scheduling of marijuana may be a trap. “Legalizing via Congress is (relatively) quick and easy,” Bruce Barcott wrote this week in Leafly. “The MORE Act, which would end the federal prohibition of marijuana, has now passed the House twice, but does not currently have enough support in the Senate.”

However, the Biden review is fraught with peril, Barcott says:

This order will be slow-walked by the FDA and DEA. They will run out the clock on the first Biden Administration.

If Biden is defeated in 2024, his Republican successor will kill the initiative. Even if the FDA and DEA come in with a shocking report advocating the removal of cannabis from the federal drug schedule, the new president will simply round file it. This has, sadly, happened before. If you don’t know the notorious story of President Nixon and the Shafer Commission, I invite you to wallow in that infamous chapter of American history.

If President Biden wins a second term in 2024, the outcome could be even worse.

If Biden presses DEA and FDA to act, his “fresh look” at marijuana’s status could result in a decision to keep it as Schedule I or re-schedule cannabis as a Schedule II substance. Both would be disastrous for pot decriminalization.

This is not likely to end well.

NY Cannabis Insider, An honest take on the likelihood of federal marijuana legalization (October 3, 2022)

Marijuana Moment, Senators File NDAA Amendments To Legalize Medical Marijuana For Military Veterans And Protect VA Home Loan Benefits (October 3, 2022)

Leafly, President Biden’s marijuana ‘review’ could be a deadly trap (October 13, 2022)

– Thomas L. Root

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

October 11, 2022 lisa-legalinfo Leave a comment

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

President 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.”

However, 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.”

Holland 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.

Some 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.”

Michael 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.”