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Thanksgiving Week: Pardon Me If I Serve Up Turkey – Update for November 25, 2024

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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.

TURKEY TIME FOR JOE BIDEN

Today, Minnesota turkey farmer John Zimmerman and his son Grant visited the White House to see two of their prize turkeys, Peach and Blossom, receive presidential clemency, something that thousands of human federal prisoners would happily take the birds’ place in order to receive.

turkeypardonme241125President Joe Biden pardoned the 7th and 8th turkeys to receive clemency in his Administration. The spectacle is an annual Thanksgiving ritual that this year is being staged amid a clamor for Biden to issue a veritable feast of real pardons and commutations in the waning days of his Administration.

In the nearly four years he has been in office, Biden has granted 25 pardons and 132 commutations out of the thousands of applications filed. He has also pardoned two classes of people who were not incarcerated, people convicted of simple marijuana possession and members of the military who were court-martialed because of their sexual orientation.

Nearly all of the commutations have involved drug offenses. They number 38 more commutations than his predecessor, Donald Trump, granted in his first term, but fewer than one-tenth of the sentences Barack Obama commuted in his second term. About 8,002 petitions for clemency are pending (including for the two turkeys).

turkeyprison161114Last Wednesday, a gobbling flock of advocates, former prisoners, and families joined 67 congressional leaders in a joint letter urging President Biden to grant clemency to non-violent federal cannabis prisoners before his term ends.

Among federal prisoners, “90% of people are convicted of non-violent offenses. Now is the time to use your clemency authority to rectify unjust and unnecessary criminal laws passed by Congress and draconian sentences given by judges,” the letter says. “We urge you to use your executive clemency power to reunite families, address longstanding injustices in our legal system, and set our nation on the path toward ending mass incarceration.”

Reps Ayanna Pressley (D-MA), James Clyburn (D-SC), and Mary Gay Scanlon (D-PA) were lead signers of the letter.

pardonturkey231121Also, in a briefing last week, Prison Policy Initiative stated, “Although he’s extended pardons and commutations during his term, President Joe Biden has yet to use his clemency powers for a person facing the federal death penalty, despite openly opposing capital punishment at one time. Biden can still heed increasing calls from advocates to improve his minimal clemency record and clear federal death row of all 40 current death sentences… Given that president-elect Donald Trump enthusiastically supports the death penalty — and has historically abused the pardon power — President Biden could spare 40 lives immediately and reclaim the true function of clemency by commuting all federal death sentences.”

Not that President-elect Trump is anti-pardon. He loves them… for the right people.

Last week, a Trump-appointed federal judge said it would be “beyond frustrating and disappointing” if Trump grants sweeping clemency to most of the defendants charged in the January 6, 2021, attack on the Capitol. Federal Judge Carl Nichols (District of Columbia) blasted the prospect of “blanket pardons” or “anything close” during the sentencing of a defendant facing eight assault charges.

Politico said, “Nichols’ comments were a surprise from the typically restrained judge and came at the end of a hearing in which he and federal prosecutors grappled at length with the potential impact of Donald Trump’s election on ongoing Jan 6 cases. He added that “anything close to blanket clemency would be similarly frustrating.”

This American Life: America’s Next Top Gobble (November 15, 2024)

Guardian, Biden must Trump-proof US democracy, activists say: ‘There is a sense of urgency’ (November 24, 2024)

Letter to President Biden (November 20, 2024)

The Appeal, U.S. Reps Urge Biden to Use Clemency to Correct “Extreme Use of Incarceration” (November 20, 2024)

Prison Policy Initiative, Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now (November 18, 2024)

Politico, Trump-appointed judge opposes ‘blanket pardons’ for Jan. 6 defendants (November 19, 2024)

– Thomas L. Root

Matt Gaetz: Mere Anarchy at the Dept of Justice – Update for November 19, 2024

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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.

THINGS FALL APART

thingsfall241119I tuned out the poetry we studied in high school English, which makes me wonder why President-elect Donald Trump’s announcement last week that Matt Gaetz would be his Attorney General made me recall W.B. Yeats’ work, The Second Coming:

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world;

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned…

Trump has vowed to execute every prisoner on federal death row, to expand the federal death penalty to include drug traffickers and migrants who kill U.S. citizens, to use the military to round up and run out immigrants, and to grant all law enforcement officers immunity from criminal prosecution.

Writing in The Watch last week, Radley Balko observed that Trump “of course promised to weaponize federal law enforcement to settle grudges, exact retribution, and protect his interests.”

Congressman Matt Gaetz (R-FL) is slated to serve as Attorney General. Gaetz, whose legal career spans about three years as a junior associate in a small Florida law firm, has never tried a case nor managed an enterprise, but he’s intended to run the Dept of Justice, of which the Bureau of Prisons is a part.

pervert160728In 2020, Gaetz was accused of child sex trafficking and statutory rape over claims that he paid a 17-year-old high school student for sex. Following an investigation, DOJ decided not to seek charges, concerned that it might not be able to prove the charge beyond a reasonable doubt. Gaetz resigned from the House last week just before the House Ethics Committee was to release a report on the sex charges, alleged drug use and other misconduct.

One DOJ official said of the nomination, “What the f— is happening?!” Another said that Gaetz is the “least qualified person ever nominated for a position in the Department of Justice.”

MSNBC admitted that “in a sense, everybody is unqualified” to serve as Attorney General, because DOJ “is so deep, broad and complex that no one can come in truly prepared for all of it. Nobody comes in knowing everything about tax or antitrust or civil rights or criminal or civil or environmental work. They do not know the intricacies of the work of its many divisions, from the Federal Bureau of Prisons to the Federal Bureau of Investigation.” But, MSNBC argued, AGs need “three qualities: integrity, judgment and independence. With those qualities, you can handle the job… [W]ith Gaetz, you might end up with somebody who is wholly unqualified for the job coupled with somebody who lacks integrity, judgment and independence.”

But why should federal prisoners care? It might be beneficial to have a man who had once been a DOJ target running things.

dungeon180627Don’t count on it. As a state legislator, Gaetz sponsored a bill requiring the Florida governor to sign death warrants for prisoners on death row as soon as their appeals were exhausted. Last July, Gaetz toured El Salvador’s notorious Terrorism Confinement Center where, CNN reported, “convicts and pretrial detainees “spend 23½ hours a day in bleak group cells, eat a bland meatless diet and have just 30 minutes a day for exercise or Bible class.”

“There’s a lot more discipline in this prison than we see in a lot of the prisons in the United States,” Gaetz said at the time. “We think the good ideas in El Salvador actually have legs and can go to other places and help other people be safe and secure and hopeful and prosperous.”

In other transition news, Sen. John Thune (R-SD) will serve as Majority Leader—the person who will control which bills are voted on—in the new Senate, which convenes on Jan 3, 2025. Thune has consistently opposed even modest marijuana reform proposals, once calling legalization a “dangerous path.”

In 2021, Thune acknowledged that marijuana is an “area that’s still evolving, and our country’s views on it are evolving,” adding that “how we deal with it nationally, is still an open question.”

President Biden promised in 2022 that rescheduling marijuana from Schedule I to Schedule III – which could lead to the easing of criminal penalties – would be done by the end of 2024. A DEA hearing on the matter is set for December 4. It’s not clear that final rules can be rolled out before a new and possibly hostile Congress is seated.

Radley Balko – Substack, The “broligarch” threat to criminal justice reform (November 13, 2024)

NBC, Justice Dept. employees stunned at Trump’s ‘insane,’ ‘unbelievable’ choice of Matt Gaetz for attorney general (November 10, 2024)

MSNBC, An attorney general needs 3 qualities to be successful. Matt Gaetz doesn’t even have one. (November 14, 2024)

CNN, Matt Gaetz would oversee US prisons as AG. He thinks El Salvador’s hardline lockups are a model (November 14, 2024)

Marijuana Moment, Every GOP Senate Majority Leader Candidate Opposes Marijuana Legalization (November 12, 2024)

– Thomas L. Root

Trump and the Future of Everything: Today, the Bureau of Prisons – Update for November 15, 2024

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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 FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

So far this week, we have considered Trump and firearms (Tuesday), Trump and marijuana (Wednesday), and yesterday, we looked at   sentence reform and clemency. Today, we consider Trump and the BOP.

THE FUTURE OF THE BOP

With cost-cutting a part of the Trump agenda, the BOP is primed to take it on the chin. There should be more pressure to reduce prison populations, Walter Pavlo said last week in Forbes, which could be good news for those who are eligible for First Step Act credits. At the same time, Trump could restart use of private prisons, particularly for deportable immigrants.

Trump instituted a hiring freeze when he took office in 2017, and sought a cut of over 6,000 BOP jobs in a 2018 DOJ plan. In 2018 – when Trump made the BOP cuts – the agency had a $7.1 billion budget. The BOP has asked for $8.6 billion money240822in FY2025 and another $3 billion to repair crumbling infrastructure. Pavlo said, “Spending at these levels is simply not going to happen.”

In the waning days of Trump’s last administration, the DOJ Office of Legal Counsel issued a memorandum calling for the return of those prisoners on CARES Act. home confinement to prison when the pandemic ended. Eleven months later, the OLC (now run by a Biden DOJ) rescinded the directive. As of last January, there were still 2,656 prisoners on CARES Act, 117 of whom had 5 years or more remaining on their sentences.

No one other than Pavlo has speculated publicly that Trump might have his DOJ reinstitute the January 2021 OLC memo.

Finally, how about BOP Director Colette Peters?  One can easily see Trump’s anti-woke people bridling at calling inmates “AICs,” or “adults in custody.” If that’s enough for Trump to want the headache of replacing her – after all, he struggled with replacing a string of BOP heads during Trump I – then she will be gone. She may be too far down the food chain for him to worry about.

How she does with her new boss, for now the suspected sex criminal Matt Gaetz, remains to be seen.

Forbes, The Bureau of Prisons Under A Trump Administration (November 7, 2024)

Vice, Trump’s cuts to federal prison system “decimate” jobs (February 13, 2018)

– Thomas L. Root

Trump and the Future of Everything: Today, Sentence Reform – Update for Thursday, November 14, 2024

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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 FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

So far this week, we have considered Trump and firearms (Tuesday), and Trump and marijuana (yesterday). Today, it’s Trump and sentence reform and clemency. We consider Trump and the BOP on Friday.

THE FUTURE OF SENTENCE REFORM AND CLEMENCY

justicereform161128Throughout his campaign, Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking.

During the press conference announcing his candidacy for president two years ago, Trump said drug traffickers “are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country… We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts.”

Trump’s position has raised concerns among criminal justice reform advocates, who fear a revival of his first-term policies, which saw 13 federal executions during the height of COVID, including the first woman executed in nearly 70 years, the youngest person based on age when the crime occurred (18 years old), and the only Native American on federal death row.

His pre-election rhetoric suggests that Trump will not be championing reduction in mandatory minimums during his term as president.

It’s hard to take seriously the notion that the Dept of Justice will take a lead on any substantive issue after Trump announced that Matt Gaetz – who came a hair’s breadth from being indicted by the DOJ – will be the next Attorney General.  The New York Times reported last night that “Senate Republicans reacted with alarm and dismay to President-elect Donald J. Trump’s decision… and several said they were skeptical that he would be able to secure enough votes for confirmation.”

“He’s got his work really cut out for him,” Senator Joni Ernst, Republican of Iowa, said, chuckling as she spoke.

Senator John Cornyn (R-TX), a member of the Judiciary Committee, said, “I’m still trying to absorb all this,” he said. Mr. Cornyn later told reporters: “I don’t really know him, other than his public persona.”

The New Republic reported last night that when he was asked if he thought Gaetz has the character and experience needed to be attorney general, Representative Mike Simpson (R-ID) replied, “Are you shittin’ me, that you just asked that question? No! But hell, you’ll print that and now I’m going to be investigated.”

obtaining-clemencyBiden promised to set up a commission that would bring order to the clemency process, but – other than having the DOJ Pardon Attorney throw out thousands of petitions that had been on file for a long time – he failed to perform.

Biden has about two months to act on the nearly 7,700 petitions on file. Frankly, if the Administration has any sense of self-preservation, expect a large number of preemptive pardons for Biden administration employees and others that Trump has threatened with prosecution when he takes office.

There will definitely be two pardons in the next three weeks, but those will be a pair of turkeys. As for whether Biden will take a whack at any of the 7,700 pending applications before he leaves town on January 20th is anyone’s guess.

As for Trump, he has said repeatedly that he would pardon people convicted in connection with the January 6th Capitol riots. He has qualified his promise, saying in July that “if they’re innocent, I would pardon them.” Trump campaign spokesperson Karoline Leavitt told the Washington Post in June that Trump will decide J6 pardons “on a case-by-case basis.”

Trump has said repeatedly he would pardon people convicted in connection with the Jan. 6 Capitol riots, though it’s unclear who among the more than 1,500 charged would be subject to pardons—he told reporters in July “if they’re innocent, I would pardon them,” while his campaign spokesperson Karoline Leavitt told the Washington Post in June Trump would decide “on a case-by-case basis” who to pardon

pardonsale210118Slate observed that in his first term, Trump’s “guiding principle” was that “Trump pardoned those who could benefit Trump.” One commutation that has been promised – at least in the minds of his supporters – is of Ross Ulbricht, the founder of the dark web drug-and-weird stuff marketplace Silk Road. A social media account dedicated to securing Ulbricht’s release said last Friday, “With Trump’s upcoming inauguration, Ulbricht is finally set to be released, bringing an end to his long years behind bars… For Ulbricht’s supporters, Trump’s commitment to commutation signals a landmark moment for criminal justice reform.”

C-Span, Former President Trump Calls for Death Penalty for Drug Dealers (November 15, 2022)

NBC, Trump wants to expand the federal death penalty, setting up legal challenges in second term (November 9, 2024)

NY Times, Senate Republicans Alarmed by Gaetz Pick as Attorney General Nominee (November 13, 2024)

Slate, Trump’s Pardons Were Way Weirder Than You Remember (October 28, 2024)

Binance Square, ‘Ross Is Coming Home’: Ulbricht’s Family Rejoices as Trump Plans to Fulfill Commutation Pledge (November 9, 2024)

Washington Post, Jan. 6 riot defendants celebrate Trump’s election, angle for pardons (November 10, 2024)

Politico, Trump pledges to commute sentence of Silk Road founder Ross Ulbricht if elected (May 25, 2024)

– Thomas L. Root

Trump and the Future of Everything: Today, Marijuana – Update for November 13, 2024

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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 FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

Yesterday, we considered Trump and firearms. Today, it’s marijuana and drugs, followed by sentence reform and clemency tomorrow, and the BOP on Friday.

THE FUTURE OF MARIJUANA

marijuanahell190918For fifty years, the federal government had classified marijuana as more dangerous than opium and fentanyl.

Not anymore: President Biden’s directive two years ago that pot be rescheduled led to a recommendation last spring from Dept of Health and Human Services that marijuana be reclassified as a Schedule 3 drug, down from Schedule 1. The Drug Enforcement Administration has a hearing set for Dec 2 on the proposal and will probably agree. The New Republic said that “Biden’s actions represent what most constitutional scholars agree is the most a president can do.”

On the campaign trail, Trump at several points called for the death penalty for drug dealers, but then endorsed a Florida marijuana legalization ballot initiative (that failed to pass). “As we legalize it (marijuana) throughout the country, whether that’s a good thing or a bad thing, it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal,” Trump said last August. In an online post, Trump said, “I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use.”

Marijuana Moment said last week, “Whether that stated support will translate into action on reform legislation after Trump takes office in January is uncertain.” Republicans will control both houses of Congress, meaning that within reason, Trump can have what he wants. How his epiphany on marijuana will square with his harsh rhetoric on punishing drug dealers has yet to be seen.

mario170628Generally, last week was unkind to marijuana reform efforts in the states, with four states refusing to pass liberalization laws and another – California – and California voters overwhelmingly approving an initiative that restores felony penalties for some drug possession offenses.

“These disappointing developments suggest that the collapse of pot prohibition is slowing,” Reason reported late last week, “that the road to broader pharmacological freedom will be bumpier than reformers hoped, and that the punitive mentality of the war on drugs still appeals to many Americans, even in blue states.”

The New Republic, How the Democrats Blew Their Political Advantage on Legal Weed (November 4, 2024)

USA Today, Does Donald Trump want to legalize weed? Here’s where he stands on marijuana legislation (November 5, 2024)

Marijuana Moment, What Donald Trump’s Presidential Election Means For Marijuana Reform (November 6, 2024)

Reason, This Week’s Election Results Are a Discouraging Sign for Drug Policy Reformers (November 6, 2024)

– Thomas L. Root

Harris and Trump Agree With Each Other… Decriminalize Marijuana – Update for October 29, 2024

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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.

STRANGE BEDFELLOWS

You can tell it’s election season, as presidential candidates stake out positions on every issue (including how nice the island of Puerto Rico might be). Marijuana reform is “the rare bipartisan issue” in this year’s presidential election, according to The Wall Street Journal, that everyone seems to embrace.

marijuana221111Both Donald Trump and Kamala Harris have offered support for easing restrictions. More than half the states have legalized adult marijuana use. The pot industry says more reforms are needed, but these are all in banking, decriminalization of personal-use qualities, and research studies.

What no one’s talking about is changing the federal criminal code on marijuana, let alone retroactively. While reclassification of marijuana as a Schedule III drug, anticipated in the next two months, will mean that some penalties for some offenses will probably be reduced – especially in the Guidelines –violations of the Controlled Substances Act which “apply to activities involving marijuana specifically, such as the quantity based mandatory minimum sentences […] would not change as a result of rescheduling,” the Congressional Research Service said.

As part of her pledge, Kamala Harris said she would take steps to ensure that black men, disproportionately incarcerated and disenfranchised by the war on drugs, would stand to profit from the industry. Harris’s pledge to end marijuana prohibition sets her apart from both Biden and Trump, making her the first candidate to say that prohibition is a priority.

During his administration, Biden made a lot of promises about marijuana, including pardons for simple possession convictions to reschedule pot. Biden has only granted pardons to a small fraction of weed-related convictions during his administration. Biden’s sponsorship of the Violent Crime Control Act of 1994 has left him, rightly or wrongly, with the reputation as being opposed to criminal justice reform.

sessions180119Meanwhile, Trump has changed his tune on marijuana during this election season, taking positions at odds with his record of having appointed anti-drug zealot Jefferson Beauregard Sessions III as his attorney general. But Trump later pushed the First Step Act through Congress, although he has publicly groused that he did it primarily to get black support which he never received.

Advocates and opponents now cross party lines. In Florida, Bradford County Sheriff Gordon Smith — a Republican — made an ad backing that state’s referendum, said Florida Politics. Legalization will “let us focus on serious crime, making our streets and neighborhoods safer,” Smith said. But Gov. Ron DeSantis (R) is fighting the proposal, said NBC News. The one-time GOP presidential candidate is campaigning against the referendum, one observer said, “as if it’s his own name on the ballot.”

Martin Luther King, Jr., once said, “The arc of the moral universe is long but it bends toward justice.” Likewise, the arc of marijuana regulation is long but it bends toward reform. Just not tomorrow and maybe not even next year.

Wall Street Journal, The Rare Bipartisan Issue in This Year’s Election: Recreational Weed (October 21, 2024)

The Week, Is legal weed a bipartisan issue now? (October 23, 2024)

The Guardian, Kamala Harris promises full marijuana legalization – is that a gamechanger? (October 19, 2024)

HeraldNet, Comparing Harris and Trump on crime and justice (October 19, 2024)

– Thomas L. Root

Why We Should Expect Nothing from Congress This Year – Update for January 23, 2024

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

BIDEN’S DISAPPEARING SUPPORT FOR CRIMINAL JUSTICE REFORM

The emails are unrelenting. When will the Second Step Act pass? What is Congress doing for people with 18 USC 924(c) convictions? Is it true they’re bringing back CARES Act home confinement? And the old favorite: How about the 65% law?

nothinghere190906My answers have not changed: Never.  Nothing.  No.  And ‘there’s no 65% law.’

Back when he was a candidate in 2020, President Biden staked out big, bold stances on criminal justice reform. We imagined what The Hill last week called “a ground-up reworking of the carceral state,” with all First Step Act changes in gun and drug crime law becoming retroactive, substantial marijuana decriminalization, passage of the EQUAL Act… As The Hill put it, “Biden’s vows of far-reaching reform were so numerous that the Prison Policy Initiative had to limit itself to listing only his five biggest pledges in a post-election recap. The Marshall Project called Biden’s criminal justice platform “the most progressive … of any major party candidate in generations.”

Four years later, Biden’s criminal justice reform efforts have brought forth a mouse. His grand 2020 pledges have disappeared from his website, and “a shroud of silence has fallen over Democratic offices when queried about the issue,” as BNN described it last week.

Last week, the Dept of Justice reported that Federal arrests during fiscal year 2022 were up 24% from the number in FY 2021. Immigration offenses accounted for 24% of those arrests, supervised release violations were almost as numerous at 23%, and drug trafficking offenses accounted for 21%.

nothing190906

It is significant that criminal justice reform people – who usually have nothing good to say about President Trump – are comparing Biden’s reform record unfavorably to Trump’s, whose First Step Act “has shown positive results, with those released under it being less likely to reoffend, demonstrating that federal criminal justice reform can be effective,” BNN said.

So what happened? The Hill says Biden’s abandonment of meaningful criminal justice reform

has been driven in large part by a wildly successful Republican messaging campaign. GOP politicians, aided by a friendly network of right-wing media outlets, have spent much of their time since 2020 selling American voters on the fiction that crime is surging. They’ve also made sure those Americans know to lay the blame on so-called “soft on crime” Democrats, whom they universally portray as eager to release dangerous felons onto the street. That messaging helped Republicans rack up wins that cost Democrats control of the House.

“The states are all still passing criminal justice reforms or fighting for them,” Crime and Justice News quoted Lorenzo Jones of the Katal Center for Equity, Health and Justice as saying. “The people doing that are all local, but those local people have been largely shut out of the national spotlight.” Burns believes that Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform. He urges Biden to bring together “neglected criminal justice reform groups and do[] some much-needed listening.”

nothing190924Terrence Coffie, an adjunct assistant professor at New York University (and a man whose first academic achievement was getting his GED in 1993 while serving a drug trafficking sentence), said Biden could turn around his abandonment of criminal justice reform by leading an effort to repeal the Violent Crime Control and Law Enforcement Act of 1994, an “outdated and draconian piece of legislation…” that has “perpetuat[ed] harm rather than fostering justice.” Writing in Forbes last week, Walter Pavlo said Coffie “believes it is a critical step towards rectifying historical injustices and forging a more equitable path forward for marginalized communities.”

Just don’t expect any steps along that “equitable path” to be taken in 2024, with Democrats frightened of criminal justice reform and Republicans decrying a violent crime wave sweeping America.

The Hill, What happened to Biden’s promises on criminal justice reform? (January 17, 2024)

BNN, Biden’s Criminal Justice Reform: Promises Unfulfilled Amidst Political Play (January 17, 2024)

DOJ Office of Justice Programs, Federal Arrests Increase 24% After Falling to a 20-Year Low (January 18, 2024)

Crime and Justice News, Have Biden, Other Dems Caved On Criminal Justice Reform? (January 19, 2024)

Forbes, Biden’s Mixed Messaging On Criminal Justice Reform (January 15, 2024)

– Thomas L. Root

Prisoners Joining The 16,000-Member Club – Update for January 11, 2024

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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.

BIG BOX, SMALL BAUBLE

My email inbox started smoking yesterday with reports from federal prisoners that they were receiving the promised Dept of Justice Office of Pardon Attorney letters informing them that their clemency petitions – many of which had been languishing for years – had been denied. Never year, the letters advised them, because they are welcome to apply again on the new and improved form.

The letter is at once brazen in its misrepresentations and utterly incompetent in its execution. What do I mean?

clemencyltr240111How about this? “Your commutation application was carefully considered, and the determination was made that favorable action is not warranted at this time.” Suddenly, after letting 16,000 or so clemency petitions pile up – although to be fair, most petitions were already piled high on the tables and chairs and floor when she took office – Pardon Attorney Elizabeth G. Oyer had in a few short weeks “carefully considered” all of the thousands of clemency petitions clogging the offices and corridors and made the “determination… that favorable action is not warranted at this time.”

That’s not what DOJ said.

The current Administration inherited an unprecedented backlog of clemency petitions. Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve. Those receiving letters are welcome to submit new petitions.

No careful consideration. No “determination” that favorable action was not warranted. just delivery of closure and an invitation to start over.

Honesty, which appears to be in short supply at the OPA, would have said, “We’re so overwhelmed with petitions, many of them years old, that we’re just throwing everything out and starting over. If you’re still interested, you’re welcome to file again.”

OPApardonoyer240111And how about “[T]he list of names is published on the Department’s website at www.justice.gov/pardon?” As of January 10, 2024, no such list can be found. So an office so dysfunctional that it can’t even rustle up a list of all of the prisoners and former prisoners whose petitions were bounced – after telling unhappy applicants that the list was online – wants prisoners to believe that their “commutation application[s were] carefully considered.”

Or maybe the OPA doesn’t even care whether petitioners believe the assurance or not.

Sadly, this latest affront is about par for the Biden clemency approach. Sure, clemency seemed to be for sale in the Trump White House, but at least it was available, even if you had to navigate The Donald’s kleptocracy to get one. With President Biden, virtually the only people able to get clemency are the ones no longer in prison.

Which leads me to clemency experts and law profs Rachel Barkow and Mark Osler, who last week accurately described most of President Biden’s December 2023 clemency grants as just a “small gift in a big box,” according to .

Writing in The Hill, Osler and Barkow complained that Biden’s “claim to ‘have exercised my clemency power more than any recent predecessor has at this point in their presidency’ is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.”

First, the hollow gesture: Biden’s pardon of people convicted of simple marijuana possession underwhelms. The Sentencing Commission estimates that more than 6,500 people are covered by the pardon but only 110 people have applied for the pardon so far.

The commutation of sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses is more significant, Barkow and Osler say, but “eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause.”

paperpile240111

A few weeks before, Osler wrote in The Atlantic that federal clemency “has become a certifiable disaster, [having] withered to the point of uselessness and disrepute after decades of neglect, abuse, and administrative bloat. Petitions go through seven consecutive levels of review, wandering through the deeply conflicted Department of Justice — which sought the sentence in the first place — and the office of the White House Counsel. Not surprisingly, given this sticky muck of bureaucracy, a backlog of more than 16,000 pending petitions has built up—a striking number compared with the fewer than 2,000 pending petitions at the start of Barack Obama’s first term as president or the 452 petitions that President Bill Clinton inherited.”

The DOJ has promised a new, more streamlined process, but recalling that Biden – the “most lackluster user of the pardon power in memory [who] has done little beyond granting commutations to people who are already out of prison and pardons to minor marijuana offenders” – is the one making the promise, skepticism is the order of the day.

This week’s form-letter offal only underscores the reason such dubiousness is justified.

The Hill, Biden’s marijuana clemency grants are a small present in a big box (January 1, 2024)

The Atlantic, The Forgotten Tradition of Clemency (December 16, 2023)

– Thomas L. Root

Clemency: Out With The Old, In With the New – Update for January 2, 2024

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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.

THROWING OUT THE LEFTOVERS

Sometime this week, we’ll clean out the refrigerator. We stored our Christmas dinner leftovers eight days ago in Tupperware containers with the best of intentions: we would have several great meals where we could reprise the Christmas feast, remembering that fine meal while being frugal.

throwaway240102But somehow we never get to the leftovers. Finally, this week, we’ll just sigh and decide to throw all of the old leftovers away because they’ve just been sitting around too long. We don’t have the appetite to eat plum pudding over a week later, and we don’t know whether the Christmas goose is still safe to eat, no matter how carefully we stored it.

The Biden Administration has its own leftover problem, and like we’ll do in a couple of days, the Dept of Justice is addressing clemency by throwing everything out and starting over. Last week, DOJ – in a time-honored government agency tradition – hailed its good intentions as a cover for its historical failings. The agency announced an all-new initiative on clemency that tacitly admitted its management of the pardon/commutation program over the last 1,079 days or so has been an unmitigated FUBAR.

A DOJ “Fact Sheet” issued last Thursday announced the rollout of a new simplified clemency form that runs eight pages (not including instructions) compared to the old form’s six pages. The 33% expansion isn’t necessarily a bad thing: The new form includes for the first time questions about prison programs completed and details about release plans – logical considerations, perhaps, in a clemency determination and information an applicant previously had to know should be included in an attachment to the form.

The DOJ also promises that it “is taking steps, including providing additional staffing and technical support for the Office of the Pardon Attorney, to reduce the processing times to ensure that clemency petitioners receive answers in a timely fashion.”

So that’s good, not bad, right? Yes, except for the DOJ’s next improvement:

The current Administration inherited an unprecedented backlog of clemency petitions. Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve. Those receiving letters are welcome to submit new petitions.

do-over240102If a federal prisoner is one of the 18,000 applicants on file, he or she has just won the right to apply for commutation again, using a new form. All that work done on the prior form? All the BOP staff’s work in responding to Office of Pardon Attorney requests for information (and there’s been a lot of that)? Consider it practice…

To be sure, Biden’s DOJ clemency team did inherit an incredible backlog of clemency petitions from President Trump, who inherited an incredible backlog of clemency petitions from President Obama, Still, with Biden’s first (and maybe only) term 75% completed – the current President’s clemency grant rate is the worst in modern presidential history. Unlike all of his predecessors, he has not denied any petitions at all, meaning that the number of backlogged petitions has just gotten bigger.

clemency220418Still, candidate Biden once promised to assemble a “60-person agency independent of the DOJ, composed of people with diverse backgrounds” to review clemency cases. Less than a month into Biden’s term, Politico reported that the White House was seeking suggestions on how to reform the clemency system and deal with the backlog. But even then, some advocates doubted that Biden’s team had a plan for dealing with the backlog.

Ohio State University law professor Douglas Berman, writing in his Sentencing Policy and the Law blog, said at the time:

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that “It’s time. It’s past time.” I also share Mark Osler’s view that this could have and should have been a transition priority for the Biden team. Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a “comprehensive plan” for effective clemency reform. But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

football140422Prisoners and their families can probably be forgiven for being skeptical of any Administration promise now that it is going to do anything, where its prior assurances have proven to be hollow.

Lucy. Charlie Brown. Football. C’mon, prisoners, try another kick. The DOJ promises to hold the ball for you this time.

For those more optimistic than I, the new commutation form is available at

https://www.justice.gov/media/892361/dl?inline

DOJ also promises that it “is working to educate the public about how to submit a clemency application in order to demystify the process and help ensure broader and more equitable access.” The only mystery is why we have gone three years into the presidential term of a man who in his first 100 days promised to fix clemency, only to have 18,000 people be told to start over.

DOJ Press Release, Fact Sheet: Justice Department Improvements to the Clemency Process (December 28, 2023)

DOJ, New Clemency Form (December 28, 2023)

Politico, Trump left behind a clemency mess. The clock’s ticking for Biden to solve it. (February 11, 2021)

Sentencing Law and Policy, How about some clemency grants from Prez Biden while his team works on grander clemency plans? (February 11, 2021)

– Thomas L. Root

Sisyphus and Marijuana Reform – Update for July 13, 2023

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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.

MEANWHILE, CONGRESS IS HARD AT WORK…

Just kidding.

sisyphus230713Sisyphus – who pushed the rock up the hill, for you mythology-challenged readers – was a model of efficiency compared to Congress. That’s generally so, but hardly better illustrated than in the world of marijuana reform.

Marijuana – now known by its preferred pronoun “cannabis” – has nearly reached the top of legislative mountain before. States have OK’d it for medical use and in some places, for recreational toking. I drove through Michigan last weekend, where you can no longer see the forests for the recreational “cannabis” dispensary billboards. But federal recognition of the states’ fait accompli? Not even close.

Forbes last week ran a piece explaining why federal legalization of marijuana (which I figured was a done deal when the 2021 Congress convened) is at least a decade away.

“President Joe Biden isn’t pro-cannabis, nor are any of the other major declared candidates, including former President Donald Trump,” Forbes stated. “Trump said that drug dealers should be executed. Former New Jersey Governor Chris Christie, who opposed cannabis legalization during his first bid for president in 2016 and referred to tax revenue from pot sales as “blood money,” said during a town hall on CNN that he would end parts of America’s drug war, but still opposes legalization. Robert F. Kennedy Jr., who is running as a Democrat and got arrested for marijuana and heroin decades ago, said he would decriminalize weed, but he stopped of supporting legalization.”

Forbes recounted that Morgan Paxhia, co-founder of San Francisco-based cannabis investment firm Poseidon, “was lobbying in Washington, D.C. late this spring when he finally accepted that America’s prohibition on pot is not going to end soon. Any hopes that the Biden Administration will remove marijuana from the list of controlled substances is ‘dead in the water,’ according to the politicians and staffers Paxhia met with. “My feeling of federal legalization is that it could be 10 years or more,” Forbes quoted Paxhia as saying.

potbillboard230713However, writing in Marijuana Moment last week, Rep. Earl Blumenauer (D-OR) noted that the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports is recommending the removal of marijuana from its list of prohibited substances and that the House has passed legislation to enable state-legal cannabis companies to have banking services seven times. Despite the fact this happened last year, when the Dems controlled the House, Blumenauer hopefully writes, “Perhaps this is the final stretch towards ending the failed war on drugs. If the NCAA is issuing a call for a reasonable, rational drug policy, can Congress be far behind?”

Meanwhile, Robert Wood – writing in The Hill last week – argued that justice demanded that the stalled EQUAL Act be passed. Wood, who won a sentence reduction under First Step Act’s Section 404, which made the 2010 Fair Sentencing Act retroactive, argued that the EQUAL Act’s opponents “often fail to comprehend the human aspect of these unjust sentences. We are talking about individuals who have served 10, 15 or even 20 years in prison, with some serving life sentences. These men and women are not statistics; they are our fellow citizens, who have families and communities to return to… The goal of passing the EQUAL Act and ensuring its retroactivity is to rectify the wrongs committed under an unjust system. By providing these individuals with an opportunity for redemption, we embrace the core principles of fairness, equality and justice. As a nation that prides itself on these values, we must not turn a blind eye to the suffering caused by outdated policies.”

No hearings have been held on EQUAL this year, and I suspect that none will happen. Jacob Sullum noted in Reason last week that “Donald Trump can’t seem to decide whether he wants to execute drug dealers or free them from prison. The former president’s debate with himself reflects a broader clash between Republicans who think tougher criminal penalties are always better and Republicans who understand that justice requires proportionality.”

warondrugs211028Trump, who brutal drug warriors like Rodrigo Duterte, the former president of the Philippines, said last fall that “We’re going to be asking everyone who sells drugs, gets caught selling drugs, to receive the death penalty for their heinous acts.” When he repeated that two weeks ago during a Fox News interview, anchor Bret Baier pointed out that a policy of executing “everyone who sells drugs” was inconsistent with Trump’s record as president, which included passage of First Step and clemency aimed at reducing drug penalties that Trump described as “very unfair.” Baier pointed out that Alice Marie Johnson, a first-time, nonviolent drug offender whom Trump granted a commutation and later a full pardon for her participation in a cocaine conspiracy, would have been “killed under your plan,” Baier noted, “as a drug dealer.”

As long as the presidential campaign, which has over 15 months to go, is focused on crime, expect nothing from Congress.

Forbes, Why National Cannabis Legalization Is Still A Decade Away (June 30, 2023)

Marijuana Moment, If NCAA Can End Marijuana Ban, So Can The Federal Government, Congressman Says (July 3, 2023)

The Hill, Justice for all: It’s time to end the discrimination between crack and cocaine sentencing (July 4, 2023)

Reason, Trump Can’t Decide Whether To Free Drug Dealers or Kill Them: The Former President’s Bloody Rhetoric Undermines His Defense of Sentencing Reform (June 28, 2023)

– Thomas L. Root