Tag Archives: Senate

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

STILL HOPE FOR CRIMINAL JUSTICE REFORM

hope170313As 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)

lameduck221114Princeton 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.”

marijuana160818Because 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

Criminal Justice Reform Bottled Up in Fractious Senate – Update for June 6, 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.

SENATE CRITICIZED FOR INACT… – SQUIRREL, SQUIRREL!

Readers all seem to wonder why the EQUAL Act (S.79), a bill that would finally equalize punishment for crack cocaine and powder cocaine offenses, could pass the House of Representatives with an 85% vote last year and have over 60% support in the Senate (and support of the leadership), but still be sitting around with no vote in sight.

grid160411After the House passed EQUAL last fall, Ohio State University law professor Doug Berman wondered in his Sentencing Law and Policy blog whether the Senate would “move quickly to finally right a 35-year wrong?”

Nope. In a commentary last week, FAMM President Kevin Ring explained why thousands of families are still waiting for the Senate to act:

The Senate is broken. And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake…

So what’s the problem? Senators may have to vote on amendments that get offered to the bill and they are scared. They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis. In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments. But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber. The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.

Add to that explanation another one. Just like I can easily distract my dog by shouting, “Squirrel, squirrel!” and pointing in some direction, the Senate is easily distracted. The Ukraine crisis needs a big weapons bill, a mass shooting needs a debate on gun control, a Supreme Court decision leak needs a spate of bills on abortion… every crisis in the headlines disrupts Senate business.

squirrel220606A bill to fund the fight against the next COVID wave, battles over gun control and abortion (sure to be fired up with Supreme Court decisions on both due this month), and the fact that a third of senators are up for re-election, all make focus on EQUAL – which should be an easy lift – difficult.

Berman said last week, “I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be.”

Of all the criminal justice reform measures before Congress – including the First Step Implementation Act (S. 1014), the Safer Detention Act (S. 312), the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – EQUAL is the one closest to the finish line. If EQUAL can’t get to a final vote in the Senate, it’s hard to imagine any other measure getting to the President’s desk, either.

Medium, The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction (June 2, 2022)

Sentencing Law and Policy, Hoping it is not yet time to give up on passage of the EQUAL Act (June 2, 2022)

PBS, Congressional stalemate makes a quick compromise on COVID funding unlikely (June 1, 2022)

– Thomas L. Root

Senate Takes on BOP, and Other Short Rockets – Update for February 18, 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.

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Some short takes to end the week:

Mike Carvajal’s Legacy: The Associated Press yesterday reported that a bipartisan group of senators, led by Jon Ossoff (D-Georgia) and Mike Braun (R-Indiana) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

prisoncorruption2310825Giving itself a well-deserved victory lap, the AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Sen. Richard Durbin (D-Illinois) also will be part of the group. I’m hoping to see Senator Chuck Grassley (R-Iowa)

AP called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

Advocates from across the spectrum lauded the announcement. “The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

More BOP accountability… Ironically, that may be BOP Director Mike Carvajal’s legacy.

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

And This is Kind of What the Senators Are Talking About: A BOP employee pleaded guilty Thursday to charges he sexually abused at least two inmates at FCI Dublin, the first conviction in a wave of arrests resulting from what prisoners at the women’s facility and employees called “the rape club.”

sexualassault211014The latest, a recycling technician, is one of four employees, including the warden and chaplain, who’ve been arrested for sexually abusing Dublin inmates. The Associated Press said last week that several other Dublin workers are under investigation.

The employee pled guilty to three counts of sexual abuse of a ward. Sentencing guidelines in similar cases have ranged from three months to two years, the AP said. The employee, on administrative leave since last April, remains “currently employed with the Bureau of Prisons,” the agency said last Friday. He had been allowed to transfer to another BOP facility while under investigation.

The AP published results of its investigation of FCI Dublin a week ago, saying it had found “a permissive and toxic culture at the Bay Area lockup, enabling years of sexual misconduct by predatory employees and cover-ups that have largely kept the abuse out of the public eye.” Inmates told AP they had been subjected to years of “rampant sexual abuse by correctional officers and even the warden, and were often threatened or punished when they tried to speak up.”

Federal News Network, Worker pleads guilty to abusing inmates at US women’s prison (February 11, 2022)

Associated Press, AP investigation: Women’s prison fostered culture of abuse (February 6, 2022)

Violent Offender Recidivism: The US Sentencing Commission last week released a study suggesting that violent federal offenders committed new crimes at double the rate of nonviolent offenders.

welcomeback181003Over an 8-year period, 64% of violent offenders released in 2010 were rearrested, compared to 38% of non-violent offenders. The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders. What’s more, while recidivism dropped with age, in all categories violent offender committed new crime at a higher rate than nonviolent. For ages 60+, violent offenders’ recidivism rate was 25%, compared to 12% for nonviolent.

Violent offenses were defined based on the sentencing guidelines applied. By the definitions used, 9% of federal prisoners are serving time for violent crimes and 34% have prior violent-crime convictions.

US Sentencing Commission, Recidivism of Violent Federal Offenders Released in 2010 (February 10, 2022)

– Thomas L. Root