Tag Archives: SMART Cocaine Sentencing Act

Blue Christmas for Criminal Justice Reform – Update for December 27, 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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SENTENCE REFORM DIES WITH 117TH CONGRESS

Sentencing reform is dead for another two years.

bluechristmas221227Of 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.

runoutclock221227It 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.

congressgradecard221227If 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.

timing221227But 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

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DOJ Uses Guidance Memos to Try to Effect Crack Cocaine Reform – Update for December 19, 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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CRACK REFORM COMETH… BUT IT’S TEMPORARY AND DOESN’T HELP ANYONE ALREADY LOCKED UP

Attorney General Merrick Garland has instructed federal prosecutors to end disparities in the way they charge offenses involving crack cocaine and powder cocaine.

crackpowder160606The change, outlined in two internal memos released by the Dept of Justice on Friday, is a “win for criminal justice reform advocates, who point out that the current sentencing regime has led to the disproportionate incarceration of Black Americans since the policy was adopted nearly 40 years ago,” Reuters said.

The new policy will take effect within 30 days. It does not apply retroactively. This means anyone sentenced under the harsher 18;1 ratio has no way to have his or her sentence adjusted to reflect what Congress now believes is fair.

The memos argue that “the crack/powder disparity in sentencing has no basis in science, furthers no law enforcement purposes, and drives unwarranted racial disparities in our criminal justice system.” Garland instructed prosecutors to treat “crack cocaine defendants no differently than for defendants in powder cocaine cases” when charging defendants and making sentencing recommendations.

They also instruct prosecutors to reserve charges involving mandatory minimums to situations with certain aggravating factors, such as leadership, possession of a gun, gang membership, or a history of violence.

“Today’s announcement recognizes this injustice and takes steps to finally strike parity between powder and crack cocaine sentences,” Sen Cory Booker (D-NJ), a sponsor of the EQUAL Act (S.79), said in a statement.

grassley180604But Sen. Charles Grassley (R-IA), whose SMART Cocaine Sentencing Act (S.4116) – introduced last summer – is responsible for derailing the EQUAL Act, was displeased. “A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill,” Grassley said in a statement. “That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands. The administration could have engaged in the real and lasting legislative process, but opted for flimsy guidance that will disintegrate when this administration leaves office.”

Although Garland’s new charging policy has no retroactive effect, Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that “federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.”

Reuters, U.S. Justice Department moves to eliminate cocaine sentencing disparity (December 16, 2022)

Washington Post, Garland moves to end disparities in crack cocaine sentencing (December 17, 2022)

Dept of Justice, General Department Policies Regarding Charging, Pleas, and Sentencing (December 16, 2022)

Dept of Justice, Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases (December 16, 2022)

BBC, US to end crack and powder cocaine sentencing disparity (December 16, 2022)

Press Release, Grassley Statement On Justice Department’s Usurpation Of Legislative Authority, Disregard For Statutes As Written On Cocaine Prosecutions (December 16, 2022)

Sentencing Law and Policy, US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine (December 16, 2022)

– Thomas L. Root

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The Last Chapter for EQUAL Act Gets Written This Week – Update for December 12, 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.

THIS WEEK MAY BE EQUAL ACT’S LAST STAND

noteasycongress221212Politico, a website covering Capitol Hill goings-on, reported last week that efforts to attach the EQUAL Act (S.79) – a bill that would make crack and powder cocaine the same for sentencing, to the National Defense Authorization Act (H.R.8900) – are “no longer expected.”

However, Senate Judiciary Committee chairman Richard Durbin (D-IL) confirmed to Bloomberg that Democrats are still considering attaching the bill to the NDAA, which Congress must approve every year to fund the military. If attaching EQUAL to NDAA fails, the Senate might instead attach it to a package of spending bills to fund the federal government that must pass by this Friday.

Taylor Foy, a spokesperson for Grassley, told Bloomberg that it appears unlikely that a deal will be reached to include a measure on cocaine sentencing in the NDAA, but there might be an opportunity to include the provision in the upcoming government funding package.

Sen Cory Booker (D-NJ), one of the EQUAL Act’s sponsors, admitted, “we’re in a tough negotiation moment right now. I just want to make sure that I focus on doing what I can to get something over the line, as opposed to talking about strategy.”

EQUALgone221212Time is short, with only a few weeks until this congressional session ends on January 3. When the session ends, all unpassed bills – including EQUAL – will disappear.

Although EQUAL passed the House overwhelmingly last summer, it stalled in the Senate as Sen Charles Grassley (R-IA) proposed the SMART Cocaine Sentencing Act (S.4116), an alternative that would maintain a 2.5:1 ratio of crack to powder, and put all retroactivity decisions in the hands of the Dept of Justice. Current talks seem to be adopting Grassley’s 2.5:1 ratio. Senate Democrats have rejected Grassley’s proposal that DOJ should be the sole authority to decide which prisoners should have EQUAL’s benefits applied to their sentences retroactively. As a result, Politico reports, “negotiators are now discussing removing retroactivity altogether, according to a Democratic aide.”

FAMM President Kevin Ring said it would be “immoral to pass a bill that did not provide relief to those whose sentences were so bad that it convinced Congress to change the law.” Holly Harris, president of the Justice Action Network, said, “The thought that this would die at the last minute in a procedural machination in the Senate is unconscionable to me. The obituary on this bill would be the greatest indictment of Washington that you have ever read.”

lameduck221114Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman said, “Given that the House so overwhelming passed the EQUAL Act last year, I want to believe there is a chance for some kind of reforms in the next Congress even with the GOP in control of the House. But that might be crazy talk, so maybe this lame-duck period is the last best chance for crack sentencing reform. But at this late date, I am certainly not optimistic.”

Politico, Cocaine sentencing reform hits ‘tough negotiation moment (December 6, 2022)

National Defense Authorization Act (H.R. 8900)

EQUAL Act (S.79)

SMART Cocaine Sentencing Act (S.4116)

Bloomberg, Senators Seek Deal to End Cocaine Sentencing Disparity Before Year-End (December 6, 2022)

Sentencing Law and Policy, Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act (December 6, 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

Congress Races Glacier, And Glacier Wins – Update for May 31, 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.

NOTHIN’S HAPPENIN’ HERE

Every week, I get a lot of emails from people like this one this morning:

“I am sorry, I know that everyone sends you messages asking for information about the bills in the house and senate, but i have to ask.  Have you heard anything about the prohibiting punishment of acquitted conduct act?”

People are always just wanting “an update” on bills pending (or on bills they just imagine are pending) in Congress.

nothing160321My answer is always the same: if anything is going on with one of these bills, I will cover it in the newsletter. If I haven’t mentioned it, nothing’s going on. 

Like last week. Nothing went on last Monday. And after Tuesday’s horrific shooting in a Uvalde, Texas, school, Congress’s focus turned to anguished sound bites and to what feel-good knuckle-headed legislation might be passed in response. Think I’m over-reacting?  Ask “One-Door” Ted Cruz. Or “High-Caliber” Joe Biden.

But, as for criminal justice reform, here’s an update on legislation:

EQUAL Act: Senate Majority Leader Chuck Schumer held a news conference in front of the Second Circuit courthouse in New York City to call on lawmakers to support the EQUAL Act (S.79), which would end the sentencing disparity between crack and powder cocaine that has had a disproportionate effect on black defendants.

In September, the House passed the bill 361-66, which ends a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. Since then, the Senate Judiciary Committee has approved the bill, sending it to the Senate floor for a vote.

The New York Daily News reported that Schumer, “who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor.”

Senators Rob Portman (R-OH) and Cory Booker (D-NJ) are sponsoring the bill, which has 21 cosponsors, 11 of the Republican. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer said last Monday. “We want to get this done as soon as we can.”

But all is not roses. At the end of April, Sen Charles Grassley (R-IA) introduced the SMART Cocaine Sentencing Act (S.4116), which cuts the crack-powder ratio to 2.5 to 1 and puts retroactivity decisions in the hands of the Dept of Justice. While the bill only has three cosponsors, it is generally seen as being intended to be a bargaining chip, to be used during floor debate to water down EQUAL.

Marijuana: Nearly every House Democrat and three House Republicans voted in April to pass the MORE Act (H.R. 3617). It would decriminalize marijuana, something 27 states and the District of Columbia have already done.

nothing190906

Meanwhile, expectations are wavering over a marijuana legalization bill in the Senate. Most of the pressure for cannabis reform is coming from state financial regulators, who last week urged Congress to pass marijuana banking reform as part of a large-scale manufacturing bill that’s currently being finalized in conference committee. In a way that would be helpful, because marijuana criminal reform has been held hostage to the problems state dispensaries have in accessing the banking system.

Experts predict, however, that the MORE Act won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who has said that he is unsure about legalizing adult-use marijuana.

Much of the slowdown in criminal justice reform results from violent crime rates nationwide, which have cooled the reformers’ ardor. Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.

nothingcoming181018Guns: Note to people who email me asking when Congress is going to reform the 18 USC 924(c) possession of a gun during drug and violent crimes statute. The rising violent crime rates – not to mention mass shootings in Buffalo and Uvalde, Texas, pretty much guarantee that no one is going to call for changes in 924(c) that will benefit defendants.

New Legislation: One bill introduced last week is good for federal prisoners. The Family Notification of Death, Injury, or Illness in Custody Act of 2022 (already introduced in the House as HR 6296), would require the DOJ to establish guidelines for the Bureau of Prisons and state correctional systems to notify families of incarcerated people if their loved one has a serious illness, a life-threatening injury or if they die behind bars.

The bill’s introduction in the Senate last Thursday comes more than two years after the Associated Press reported that BOP had ignored its internal guidelines by failing to notify the families of inmates who were seriously ill with COVID. The legislation – introduced by Sens. Jon Ossoff, D-Ga., and John Kennedy, R-La. – is “the latest step by members of Congress to further oversight of the beleaguered federal prison system, which has lurched from crisis to crisis in recent years,” AP reported.

New York Daily News, Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’ (May 23, 2022)

S.4116, SMART Cocaine Sentencing Act

Gray DC, Cannabis legalization remains stalled on Capitol Hill (May 26, 2022)

Vigour Times, How Criminal Justice Reform Fell Apart (May 26, 2022)

AP, Senate bill would set up medical notification to inmates’ kin (May 23, 2022)

– Thomas L. Root

EQUAL Act May Be In Trouble – Update for May 2, 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.

SUDDENLY, CRIMINAL JUSTICE LEGISLATION IS IN TROUBLE

Just last Friday, I mused that the EQUAL Act (S.79) – the much-heralded legislation that would finally make penalties for cocaine distribution identical regardless of the form the cocaine took (cocaine base or cocaine powder) – might have a little competition.

russiantank220502Now, that seems to be like predicting the Russians might run into a little delay on their way to Kyiv.

On Friday, it looked like a few Republican senators might want to leverage their SMART Cocaine Sentencing Act to win a few amendment concessions before EQUAL passes. Now, the problem seems much more extreme than that.

At the end of last week, The New York Times reported, “with control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of [the EQUAL Act] is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters… Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.”

You may recall that on Thursday, Senators Roger Wicker (R-Mississippi), Charles Grassley (R-Iowa), Mike Lee (R-Utah) and Lindsey Graham (R-South Carolina) announced SMART, a bill that would reduce the current 18:1 crack-to-powder ratio to 2.5:1 instead of EQUAL’s 1:1.

(If Lindsay Graham’s name seems familiar, maybe that’s because he is also a co-sponsor of the EQUAL Act).

But diddling with the ratio is not all that SMART does.  For people already convicted under 18:1, there would be no retroactivity unless the Attorney General “certified” to the court that the sentence should be reduced. Mind you this is the same Dept. of Justice that rejects thousands of clemency petitions before they ever reach the White House and fights hammer and tong against any inmate seeking First Step Act Section 404 reductions.

scrooge220502Imagine nominating Scrooge to plan Santa Claus. Same thing.

Grassley argued last week that the EQUAL Act does not account for the differences in recidivism rates between the two types of cocaine offenses. He said crack offenders reoffend at a 60.8% rate while powder cocaine offenders are at only 43.8%, and crack defendants are the most likely drug offenders to carry weapons.

The obvious rejoinder is that if the crack offenders are carrying weapons, there are Guidelines enhancements (such as § 2D1.1(b(1)) and even separate statutory offenses that do a much better job of targeting the people with the guns than punishing one class of drug offenders for the probability that the person has a weapon. As for recidivism, the Guidelines already increase sentencing ranges based on the defendant’s criminal history. Arguing that a crack offender must be punished more severely than a cocaine powder offender because he or she is statistically more likely to commit a crime in the future has a certain “Minority Report” aura to it.

FAMM President Kevin Ring blasted SMART on Twitter for

INCREASING the # of people who will be subject to man mins for powder while reducing the # subject to man mins for crack. Remember, no member had suggested powder sentences were too low until the EQUAL Act gained steam.” Plus, SMART “requires the Attorney General to certify every request for retroactive application of the new penalties. This is unprecedented and absurd. No retroactive changes in recent history – by the Commission or Congress – ever required AG certification.

But beyond the weird provisions of SMART is the fear that it may spell the death of EQUAL. Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog, worried that “the fact that the EQUAL Act has not become law already makes me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.”

“The time for negotiation has passed, and it passed a long time ago,” said Jason Pye from the Due Process Institute. “The EQUAL Act is an exercise in bipartisanship, which is more than I can say for Senator Grassley’s bill.”

Meanwhile, expectations are wavering over the marijuana legalization bill that Senate Majority Leader Charles Schumer (D-NY) promised would be introduced in April. Now lawmakers have pushed the timeline back to later in the summer as continued debate threatens the bill’s success.

senatemarijuana220412Schumer said he wanted to give senators time to debate certain provisions. The Senate majority leader said he is reaching across party lines to gain support for the bill, but experts predict he won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who last month told The Hill that is he unsure about legalizing adult-use marijuana.

Last month, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act passed the House with a near-party line vote that included only three Republicans. MORE is not expected to pass the Senate.

As the November midterms approach, it is likely that criminal justice will become even more of a political game, with federal prisoners as the football.

The New York Times, Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress (April 29, 2022)

S.__ (no number yet), SMART Cocaine Sentencing Act

Sen Charles Grassley, Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend (April 28, 2022)

Politico, Huddle: Freedom Caucus at a crossroads (April 29, 2022)

Twitter, Kevin Ring, Current Crack-Powder Disparity Is Unjustifiable (April 28, 2022)

Sentencing Law and Policy, GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act (April 29, 2022)

The Paper, Cannabis News (April 28, 2022)

– Thomas L. Root

EQUAL Act Runs Into Some Competition in Senate – Update for April 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.

BACK TO WORK FOR CONGRESS

Congress is back in session after Easter/Passover/Ramadan break, and the drumbeat continues for the EQUAL Act, even as insurrection against the favored bill brews.

crackpowder160606As noted earlier this week, the DOJ threw a plug in for EQUAL as part of its PATTERN report to Congress. It wasn’t alone. Last week, The Hill editorialized that “April is Second Chance Month and an opportunity to think deeply about the real purpose of incarceration — and of penal systems more broadly. Is the purpose to dehumanize those who transgress? Or is it to protect communities and preserve or restore justice within them?… The EQUAL Act… addresses the sentencing disparity in our federal justice system involving penalties for crack and powder cocaine offenses, which has resulted in unintentional racial disparities and significantly higher federal prison populations. The law was intended to reduce the harm of crack cocaine possession, distribution and consumption. The validity of its original intention may be debated, but it has been proven to have unacceptable consequences.”

Writing in the Washington Examiner, former congressman Doug Collins said, “it’s no surprise that law enforcement is spearheading” the EQUAL Act… Roughly 90% of those serving time for crack offenses at the federal level are black, which means they serve vastly longer prison sentences than those convicted of powder cocaine offenses, even though the substances are chemically similar and equally dangerous. According to the country’s most respected law enforcement leaders, eliminating this disparity would help police officers build trust with communities of color, especially in urban areas where law enforcement finds it difficult to cultivate sources to investigate murders, shootings, and other violent crimes.”

Screwup190212However, proving that nothing in this world is such a slam-dunk that Congress cannot screw it up, the Start Making Adjustments and Require Transparency in Cocaine Sentencing Act (shorthand, “SMART Cocaine Sentencing Act” – an obvious competitor to the EQUAL Act – was introduced in the Senate yesterday. SMART, sponsored by Senators Roger Wicker (Mississippi), Charles Grassley (Iowa), Mike Lee (Utah) and Lindsey Graham (South Carolina), all Republicans – reduces the current 18:1 crack-to-powder ratio to 2.5:1 instead of EQUAL’s 1:1.

The nasty part of SMART is that for people already convicted under 18:1, there would be no retroactivity unless the Attorney General “certified” to the court that the sentence should be reduced. Given the Dept. of Justice’s traditional antipathy to the many prisoners seeking First Step Act Section 404 reductions, this is yet another example of turning the keys to the henhouse over to the fox.

Sen. Grassley explained the thinking behind SMART:

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses. This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses. According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent. Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses.

The MORE Act, which would decriminalize marijuana, has passed the House of Representatives. Whether it will pass in the US Senate, where all 50 Democrats and at least 10 Republicans would need to support it, is unclear. Maritza Perez, Director of National Affairs at Drug Policy Alliance, told The Grio last week it will be a “hard sell.” As reported, the Senate will be considering its own bill that Perez said focuses on less on decriminalization and more on a regulatory and tax framework for the sale and use of cannabis.

White House press secretary Jen Psaki said a week ago Wednesday that President Biden “remains committed” to honoring his campaign pledge to release “everyone” in federal prison for marijuana, claiming that he believes “no one should be in jail because of drug use.”

marijuanagrow220429Psaki did not provide a timeline. “I don’t have an update here. We are continuing to work with Congress. But what I can say on marijuana is we’ve made some progress on our promises. For instance, the DEA just issued its first licenses to companies to cultivate marijuana for research purposes after years of delay during the prior administration… Additionally, the president’s continuing to review his clemency powers, which is something he also talked about on the campaign trail and he certainly remains committed to taking action on.”

Of course, shortly after this, the President did grant some clemencies, although relatively few to marijuana offenders. More clemencies have been promised, albeit vaguely.

The Hill, Justice for some is no justice at all — we must change our criminal justice system (April 22, 2022)

The Grio, Advocates say legalizing cannabis would restore justice for Blacks, but can Washington get it done? (April 20, 2022)

Washington Examiner, Take the next step on the First Step Act (April 20, 2022)

NY Post, Biden ‘committed’ to freeing inmates with marijuana convictions, Psaki says (April 20, 2022)

S.__ (no number yet), SMART Cocaine Sentencing Act

Sen. Charles Grassley, Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend (April 28, 2022)

– Thomas L. Root