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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

DeSantis Wants to Stop the ‘Jailbreak’ – Update for June 6, 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.

WHO CARES ABOUT THE 2024 PRESIDENTIAL ELECTION? YOU SHOULD.

turnback230606Cher used to croon about how nice things could be if she could only turn back time.

I give you Cher-lovin’ Florida Governor Ron DeSantis. Ron, running for the Republican presidential nomination behind former President Donald Trump, said a week ago that if elected president, he would call on Congress to repeal the First Step Act.

DeSantis criticized the Act as “basically a jailbreak bill.”

“So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act,” DeSantis said. “If you are in jail, you should serve your time. And the idea that they’re releasing people who have not been rehabilitated early so that they can prey on people in our society is a huge, huge mistake.”

DeSantis has apparently forgotten that when he was in the House of Representatives in 2018, he voted for the House version of the bill, a much more pro-prisoner bill than the one that finally became First Step. He resigned his seat to run for governor before the final version passed.

rightthings230606Now many would say that basing a presidential campaign on not being Donald Trump is perhaps a canny strategy. And many also opine that Trump only championed the First Step Act because Jared Kushner – who really believed in its goals – convinced the then-president that black voters would love him for it. But James Carville was correct when he said that the right things usually get done for the wrong reasons.

The Daily Beast (a liberal publication) argued last week that First Step was a “bipartisan recognition that the growth of our carceral state has not been an effective crime deterrent… There are many people still in federal prisons who don’t need to be there, because they have aged out of crime and pose little risk to the community. These people, who are disproportionately Black and Latino, should be allowed to return to the workforce and their families.”

The Daily Beast called on Congress to build on the First Step Act by passing the First Step Implementation Act and the Safer Detention Act. “Fifty years after the beginning of mass incarceration, presidential candidates should be making the case for how they will do their part to end it,” the Beast wrote. “Congress should pass the First Step Implementation Act and Safer Detention Act and the current and future administrations must do their part to support these and other critical reforms and ensure their successful implementation.”

marijuana220412In other discouraging news, the Kiplinger letter reported last week that the Drug Enforcement Administration (DEA) is planning to propose a ban on delta-8 THC, CBD, and other alternative cannabinoids derived from hemp.

Those in support of the potential ban argue that delta-8 THC and other hemp-derived cannabinoids are created through “chemical synthesis” and should be classified as controlled substances. Kiplinger said a ban would be a “major step in the wrong direction.”

The Hill, DeSantis says he would push to repeal Trump criminal justice reform if elected (May 26, 2023)

Daily Beast, Ron DeSantis Is Flat-out Wrong About the First Step Act (June 2, 2023)

The Kiplinger Letter, Is a Possible Delta-8 THC Ban in the Works? (June 2, 2023)

– Thomas L. Root

President Packs USSC With Some Good Picks – Update for May 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.

SENTENCING COMMISSION DROUGHT IS LIFTING

noquorum191016President Biden yesterday nominated a bipartisan slate of seven candidates to serve as commissioners on the U.S. Sentencing Commission. If confirmed, the nominees will revitalize the USSC, giving it its first quorum in almost four years.

The list includes U.S. District Judge Carlton W. Reeves (Southern District of Mississippi). If confirmed by the Senate, he will be the first black jurist to chair the 33-year-old commission’s history.

By statute, the Commission must be bipartisan and consist of at least three federal judges and no more than four members of each political party.

Biden’s planned nominees include three active judges and four attorneys. Of those nominees, two have experience as public defenders. Nominees also include

• Laura Mate, a former assistant federal public defender in the Western District of Washington, serves as Sentencing Resource Counsel for the Federal Public and Community Defenders in Arizona;

• Judge Luis Felipe Restrepo, appointed by President Obama to serve on the US Court of Appeals for the Third Circuit and a former assistant federal public defender in the Eastern District of Pennsylvania;

• Claire McCusker Murray, formerly principal deputy associate attorney general in the Dept. of Justice during the Trump Administration;

• Judge Claria Horn Boom, appointed by President Trump to the U.S. District Courts for both the Eastern and Western Districts of Kentucky;

• Former U.S. District Judge John Gleeson (EDNY), a partner at Debevoise and Plimpton LLP, who enjoys close to rock-star status as a forward-thinking sentence reformer;

• Candice Wong, Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia.

USSC170511The Sentencing Commission has lacked a full slate of commissioners for the entirety of the Trump Administration, and has not had a quorum since the First Step Act passed in December 2018. That is why no guideline has been amended since the November 2018 amendments went into force.

Trump nominated four commissioners in August 2020, two of whom – Judges Restrepo and Boom – were renominated yesterday. Their nominations expired when the Senate did not act on them prior to the end of the 116th Congress in January 2021.

The Commission has a stack of work waiting for its attention, chief among the issues being compassionate release. Last November, the sole remaining member of the Commission at the time, Senior Judge Charles Breyer (N.D. Cal.) complained to Reuters that the lack of quorum meant the Commission could not provide guidance on how to implement compassionate release, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure a sentence reduction under 18 USC § 3582(c)(1)(A)(i) amid the COVID-19 pandemic.

“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the USSC has been powerless to fix things.

Don’t expect immediate miracles. The Commission normally works on a 12-month cycle, with proposed topics for amendments to the Sentencing Guidelines issued late in the year, followed by the actual amendments early in the following year, and a final slate of amendments by May 1. Under the law, the amendments take effect on November 1, unless Congress votes to veto one or all of them.

This means that the most anyone can hope for would be amendments to take effect on November 1, 2023.

progress220512Still, the slate of new commissioners would be the most defendant-friendly bunch to ever run the USSC. Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog yesterday, “Because these selections have surely been made in consultation with Senate leadership, I am reasonably hopeful that hearings and a confirmation of these nominees could proceed swiftly. (But that may be wishful thinking, as was my thinking that these needed nominees would come a lot sooner.) There is lots of work ahead for these nominees (and lots of blog posts to follow about them and their likely agenda), but for now I will be content with just a ‘Huzzah!’”

He’s right.  Its progress, however slow in coming.

Bloomberg Law, Biden Names Seven to Restock US Sentencing Commission (May 11, 2022)

The White House, President Biden Nominates Bipartisan Slate for the United States Sentencing Commission (May 11, 2022)

The White House, President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts (August 12, 2021)

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Prez Biden finally announces a full slate of nominees to the US Sentencing Commission (May 11, 2022)

– Thomas L. Root

Did the BOP’s New ETC Rules Get Hijacked By Biden? – Update for January 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.

THE UNSEEN HAND WRITES NEW BOP EARNED TIME RULES?

The Federal Bureau of Prisons last week announced final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

In November 2020, the BOP finally got around to proposing rules for granting FTCs under the incentives program authorized two years before in the First Step Act. The agency proposed a rule that would require 240 classroom hours of successful programming in order for an inmate to receive a mere 15 days credit on his or her sentence. At the time, I said, “In the BOP, a 500-hour program takes 12-18 months to complete. That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.”

[Editor’s note: Yes, I said “most chary.” My wife the grammarian, has since pointed out that the superlative of “chary” is “chariest.” I’d fire her, but she’s been right too many times before.]

icecreamsundae210118In my experience practicing administrative law back in the day, when an agency rolled out proposed rules in a Notice of Proposed Rulemaking for public comment, the final product looked a lot like what had been proposed, perhaps with a tweak here and there. Once in a blue moon, an agency might back off after an especially loud and sustained hue and cry from the industry and public, but rulemaking was a lot like ordering an ice cream sundae – you could specify which sprinkle, nuts, sauce, and cherry you wanted on it, but the 95% of it that was ice cream was fixed and was not going to change.

The history of agency rulemaking since the passage of the Administrative Procedure Act of 1946 makes what happened to the FTC rules so puzzling. It’s like the BOP specified an ice cream sundae, but delivered a cup of mashed potatoes and gravy instead.

The new rules, already being applied to hundreds if not thousands of inmates, represent a total repudiation of the BOP’s proposed rules announced a year ago.

I reported on the changes in the rules – the “what” – last Friday. What I didn’t talk about was the “why.” Even now, I am unsure of what caused the sea change at the BOP, but there are some hints. Traditionally, the BOP director has scrambled to imprint any favorable program with his or her initials. Yet, last week, BOP Director Michael Carvajal was strangely silent, while Attorney General Merrick Garland took a victory lap in a press release. The fact that the Attorney General issued a statement supporting the new rules, but Carvajal did not, suggests that the Biden DOJ grabbed hold of the FTC process after the BOP sought to impose Draconian limitations on the program.

sycophant220118Several members of Congress – such as Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, Sheldon Whitehouse (D-RI), John Cornyn, (R-TX) and Cory Booker (D-NJ), on the Senate side, and Hakeem Jeffries (D-NY), on the House side – criticized the proposed rules in public comments. That may have played a factor as well. The BOP’s report adopting the final rule mentioned their comments, such as this excerpt from Sens. Whitehouse’s and Cornyn’s filing:

The proposed rule’s definition of a “day” of program participation does not adequately reward engagement with [EBBR programs] and PAs consistent with the First Step Act. . . Because BOP programs do not run for eight hours per day, the proposed rule would require individuals to attend an EBRR or PA for several calendar days before they earned a full “day” of time credit. . . It was not our intent as drafters of the legislation that BOP define a “day” in this way. Nor did Congress ever consider it. . . The proposed rule’s narrow definition of a “day” does not adequately incentivize program participation and reduce recidivism as intended by the First Step Act.

The fact that the legislators’ comments were singled out approvingly – maybe even fawningly – in the report would permit a reasonable person to infer that the BOP was sending the two Judiciary Committees a message that their concerns were being addressed.

The Hill noted that the new rules were announced “just one week after the DOJ revealed that BOP Director Michael Carvajal would be resigning from his post. He had faced criticism during his time as chief of the bureau.” Fox News said “the Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet.” Associated Press observed that the final rules came “about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs.”

It seemed strange that several media outlets connected the Director’s departure with the release of the rules. It is fair to note that there is no logical reason for his announcing the retirement on January 6th, especially when the actual date was left open (he said he would stay on until a new director is appointed). The timing, as The Hill implied, may be linked to the dramatic turn in the BOP’s approach to FTCs.

bidensuperman210201

Likewise, Fox News may have settled on another reason. President Biden has taken a lot of heat recently for doing nothing on criminal justice reform. Probably because he has done nothing. Hijacking the rules and rewriting them the way Congressional Democrats would love and Congressional Republicans would accept may have been seen by the White House as a cheap fix: liberal FTC rules did not require Congressional approval and conservatives could hardly complain, because all Biden was doing was carrying forward a program President Trump proudly owned, the First Step Act.

Don’t get me wrong. I’m not complaining that the BOP did the right thing. I’m puzzled, that’s all.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, FSA Time Credits (January 13, 2022)

The Hill, Thousands of federal inmates being released this week under law signed by Trump (January 13, 2022)

Fox News, Federal inmates to be released under ‘time credits’ program (January 13, 2022)

– Thomas L. Root

Biden DOJ Flips, Says CARES Act People Can Stay Home – Update for December 22, 2021

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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.

HOME FOR THE HOLIDAYS

holidays211222Eleven months of uncertainty came to an abrupt and welcome end yesterday as Attorney General Merrick Garland announced that the Dept. of Justice’s Office of Legal Counsel had reversed its January 2021 opinion, concluding that inmates sent to home confinement under the CARES Act will not have to return to prison when the COVID-19 national pandemic emergency ends. 

The decision reversed the OLC’s swan song from the last days of the Trump Administration that

the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

Last July, things looked dire when the New York Times reported that the Biden DOJ had reviewed the OLC opinion and concluded that it was right. That was perhaps a trial balloon, because DOJ made no official announcement about any review. Nevertheless, the Times story unleashed a storm of criticism.

But yesterday, the Biden DOJ left a shiny gift under the tree for about 4,000 federal prisoners on home confinement. The new OLC memorandum begins

This Office concluded in January 2021 that, when the COVID-19 emergency ends, the Bureau of Prisons will be required to recall all prisoners placed in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act who are not otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). Having been asked to reconsider, we now conclude that section12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.

gift211222The New York Times said this morning that the OLC’s reversal “was a rare instance when the department under Attorney General Merrick B. Garland reversed a high-profile Trump-era decision. It was also a victory for criminal justice advocates.”

But not completely unexpected. During a Senate Judiciary Committee oversight hearing last October, Garland said, “It would be a terrible policy to return these people to prison after they have shown that they are able to live in home confinement without violations, and as a consequence, we are reviewing the OLC memorandum… [and] all about other authorities that Congress may have given us to permit us to keep people on home confinement.”

He promised Sen. Cory Booker (D-NJ) that “we’re not in a circumstance where anybody will be returned before we have completed that review and implemented any changes we need to make.” At that session, Committee Chairman Richard Durbin (D-IL) complained that he was “frustrated by DOJ’s handling of COVID and prison issues.”

Yesterday, Garland said in a statement, “Thousands of people on home confinement have reconnected with their families, have found gainful employment and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act. We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

A White House spokesman said in a statement that President Biden welcomed the change, noting “the relief it will mean for thousands of individuals on home confinement who have worked hard toward rehabilitation and are contributing to their communities.”

christmasunderpants211222Ohio State University law professor Doug Berman had an interesting observation about Garland’s statement in his Sentencing Law and Policy blog: “This statement by AG Garland suggests that DOJ is now going to engage in ‘rulemaking’ that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends. I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the “home confinement cohort” who may need to worry about eventually heading back to federal prison.”

For now, the impetus for prisoners to qualify for CARES Act placement, which can continue as long as the emergency lasts (and if omicron has anything to say about it, it will be awhile) will increase. CARES Act placement will rightly be seen as not just a furlough but as a bus ticket home. And we’ll just have to see whether a DOJ rulemaking wants to turn that shiny gift Biden left under the tree into a pair of underpants.

The New York Times, Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency (July 19, 2021)

The New York Times, Some Inmates Can Stay Confined at Home After Covid Emergency, Justice Dept. Says (December 22, 2021)

Sentencing Law and Policy, New OLC opinion memo concluding CARES Act “grants BOP discretion to permit prisoners in extended home confinement to remain there” (December 21, 2021)

DOJ, Statement by Attorney General Merrick B. Garland (December 21, 2021)

– Thomas L. Root