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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.

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

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.”

Not 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.

The “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.

The 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