Criminal Defense Legislative Update for January 2022
The beginning of this congressional term was cause to believe that there would be significant legislative activity, especially in the area of criminal justice reform. The idea of a unified government gave the idea to many that there would be significant criminal justice reform.
However much of this year has been focused on the president’s economic agenda to the exclusion of the criminal justice agenda. Several bills that have passed the House of Representatives are waiting to be passed by the United States Senate. And several bills that could solve serious problems in the criminal justice system have been held up while waiting on Biden’s economic agenda. However there are several bills that your editor believes is possible to pass in the remainder of this congressional session.
Reminder: How a Bill Becomes a Law
- A bill can be introduced in either chamber of Congress by a senator or representative who sponsors it.
- Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill.
- The bill is then put before that chamber to be voted on.
- If the bill passes one body of Congress, it goes to the other body to go through a similar process of research, discussion, changes, and voting.
- Once both bodies vote to accept a bill, they must work out any differences between the two versions. Then both chambers vote on the same exact bill and, if it passes, they present it to the president.
- The president then considers the bill. The president can approve the bill and sign it into law or not approve (veto) a bill.
- If the president chooses to veto a bill, in most cases Congress can vote to override that veto and the bill becomes a law. But, if the president pocket vetoes a bill after Congress has adjourned, the veto cannot be overridden.
1. The EQUAL Act of 2021
Eliminating a Quantifiably Unjust Application of the Law Act of 2021 or the EQUAL Act of 2021
Status: Passed in the House, Introduced on the floor of the Senate and referred to the Senate Judiciary committee.
Summary: From congress.gov
This bill eliminates the federal sentencing disparity between drug offenses involving crack cocaine and powder cocaine.
Currently, different threshold quantities of crack cocaine and powder cocaine (e.g., 28 grams of crack cocaine and 500 grams of powder cocaine) trigger the same statutory criminal penalties.
This bill eliminates the lower quantity thresholds for crack cocaine offenses. Under the bill, the same threshold quantities of crack cocaine and powder cocaine trigger the same statutory criminal penalties.
The change applies to future cases and cases pending on the date of enactment. With respect to past cases, the bill authorizes a sentencing court to impose a reduced sentence on a defendant who was convicted or sentenced for a specified crack cocaine offense before this bill's enactment. A defendant does not have to be present at the sentence reduction hearing. Finally, the bill prohibits the reduction of a sentence that was previously reduced.
Notes: This applies to crack cocaine cases only. This applies to crack cases under 21 USC Section 841 (drug trafficking), 21 USC 960 (importing and exporting) and 21 USC 844 (possession), as well as conspiracy to commit these crimes.
I have previously reported that the EQUAL Act has a tough road to passage in the Senate. However, I have also reported that the EQUAL Act received unanimous approval from House Republicans in Arkansas, Idaho, Wyoming, Iowa, Kansas, Kentucky, Nevada, Ohio, Oregon, South Dakota, Utah, Wisconsin, Washington State, North Carolina, and West Virginia. If the senators vote the way their house counterparts did then there would be more than 60 votes in support of this bill.
The FIRST Step Implementation Act of 2021
Status: Referred to House Committee/Placed on Senate Legislative Calendar since 7/2021
-Retroactively Apply the 924(c) and 851 relief that is present in the FIRST STEP Act but was not made retroactive and allow previously sentenced persons to ask for relief. Relief would be granted on a case by case basis with the court able to consider the 3553(a) factors.
-Safety valve reform: Allows the court to waive the criminal history portion of the safety valve if the court specifies in writing that the criminal history of the inmate or likelihood that the inmate will commit more crimes is seriously overrepresented is (as a reminder, the safety valve does not apply to persons with more than 4 criminal history points, a prior three-point offense or a prior two-point violent offense)
Notes: This sure would solve the Bryant/Jarvis/McCall problem. And the court would still be able to use the 3553(a) factors which, as many incarcerated persons have learned, can include information from the original crime.
I’m surprised that this has gone nowhere fast.
3. The COVID-19 Safer Detention Act of 2021
Status: Referred to House Committee/Placed on Senate Legislative Calendar since 6/2021
Summary: From congress.gov:
This bill expands statutory authority for federal prisoners to be released before completing their sentences or to be placed in the community to serve the final portion of their sentences.
First, the bill makes changes to the early release pilot program. The early release pilot program authorizes the Bureau of Prisons to release early and place on home confinement elderly offenders and terminally ill offenders who meet eligibility criteria.
-expands eligibility to offenders serving time for an offense under the laws of the District of Columbia,
-expands eligibility to offenders who have served at least one-half (currently, two-thirds) of their prison term,
-reduces the amount of time an offender must serve by the good time credits earned by the offender, and
-creates a judicial review process for prisoners and shortens the waiting period for judicial review during the COVID-19 pandemic.
Second, the bill modifies the compassionate release process. The compassionate release process authorizes federal courts to reduce a prisoner's sentence and impose a term of probation or supervised release in certain circumstances.
-expands eligibility to prisoners sentenced before November 1, 1987,
-specifies that vulnerability to COVID-19 is a basis for compassionate release, and -shortens the waiting period for judicial review during the COVID-19 pandemic.
Notes: I’m not sure about this bill at this time. As I have previously discussed, courts were granting compassionate release motions at a rate of 20% before the vaccine was widely available. I don’t have the most current numbers from the Sentencing Commission but I would suspect that is even lower now. The prevalence of the vaccine and the Justice Department’s statement that persons on home confinement pursuant to the CARES Act will not be required to return to prison might cause this bill to get placed on the back burner.
4. Prohibiting Punishment of Acquitted Conduct Act
Status: Placed on Senate Legislative Calendar on 7/2021/Ordered to be reported by Voice Vote by House Judiciary Committee
Summary via Congress.gov: This bill limits the consideration of acquitted conduct (e.g., conduct underlying criminal charges for which an individual was found not guilty) by a federal court at sentencing.
Notes: Neither the House nor the Senate versions have retroactivity provisions in them as of now. This would apply to conduct of which the accused person was found not guilty at trial and would not apply to pleas.
5. The Effective Assistance of Counsel in the Digital Era Act
Sponsor: Jeffries (House)
Status: Referred to House Judiciary Committee
Summary via Congress.gov: This bill prohibits the Department of Justice from monitoring the contents of a privileged electronic communication between an incarcerated person and his or her legal representative.
Notes: This bill is only in the House at the moment. While it is definitely important and would get sent over to the senate after house approval this seems like a lower priority for congress.
6. Driving for Opportunity Act of 2021
Status: Ordered to be Reported by Voice Vote from Judiciary Committee(House)/Ordered to be reported with an amendment in the nature of a substitute favorably (Senate)
Summary: This bill authorizes the Department of Justice to make grants to states that do not suspend, revoke, or refuse to renew a driver's license of an individual based on such individual's failure to pay a civil or criminal fine or fee.
Grants shall be awarded to (1) cover the costs incurred by a state to reinstate driver's licenses previously suspended for unpaid fines and fees; (2) maximize the number of individuals with suspended driver's licenses eligible to have driving privileges reinstated or regained; (3) provide assistance to individuals living in areas where public transportation options are limited; and (4) ease the burden on states where the state or local law that permitted the suspension or revocation of, or refusal to renew, driver's licenses or the registration of a motor vehicle based on the failure to pay civil or criminal fines or fees was in effect during the three year period ending on the date on which a state applies for or receives a grant under this bill.
The Government Accountability Office must study the implementation of the grant program authorized by this bill, including the known effects of repealing state laws that have permitted the suspension, revocation, or refusal of a driver's license or motor vehicle registration based on the failure to pay civil or criminal fines or fees.
Notes: I have not covered this case in a prior newsletter but I agree with all of this. I have long believed that there was a “treadmill to nowhere” regarding the cycle of persons getting charged and convicted with crimes that cause their license to be suspended, only to still need to drive and risk further criminal charges for driving while license suspended.
I can understand why it would be hard to have optimism regarding this legislation. It feels like very little has been accomplished this past year in the realm of criminal justice. The best thing that I can point to is the FIRST STEP Act itself. I personally believed that the FIRST STEP Act was dead in the water. Things moved very quickly after the former President endorsed the legislation, even when it was endorsed after the November elections and before the new members of the House of Representatives took office. I keep a positive attitude that there will be legislation passed in 2022 that will help you all.