Due to the fact that Congress was in recess all last week and for a portion of this week, there has been no legislative progress on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or anything else, for that matter. Nothing, however, can keep politicians from talking, even when they are on vacation.

One piece of good news is that all of the discussion about EQUAL – which would make crack sentences equal to cocaine powder punishments – suggests that it has the support necessary to pass. A vote on the bill will only take place when it is brought up for a vote by Senate Majority Leader Chuck Schumer (D-NY). However, despite holding a hearing on the crack-cocaine disparity bill last year, the committee has yet to schedule a markup date for the legislation.

No smooth road for Equal Act

The bad news is that everything else is a disappointment. Last week, Politico published an analysis stating that Sens. Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrats and Republicans on the Senate Judiciary Committee, are still discussing a merger of bills such as the First Step Implementation Act (S. 1014), the Smarter Sentencing Act (S. 1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step.

Richard Durbin
Richard durbin

“However, both senior senators acknowledge that it is not a smooth road ahead,” according to Politico. “This is especially true given the Republican messaging on rising crime ahead of the 2022 midterm elections — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

In a letter to Jackson this month, a number of Republican senators criticized him for being too lenient in sentencing child sex abusers and drug offenders. In an interview with CNN, Sen. Ted Cruz (R-TX), who led the attack against Judge Jackson, said that “one of the most important repercussions of these confirmation hearings” is that “there are district judges throughout the country who may have desires for advancement.” Judges who want to advance in their careers “would think twice before letting violent criminals off the hook or giving them a slap on the wrist, rather than upholding the law and imposing substantial punishments for those who have committed significant crimes.”

The fact that Cruz has been compared to a “serpent wrapped in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats” is accurate; yet, some believe that Texas has some excellent snakes (although Sen. Cruz is not among them).

While not the only consequence of the Jackson hearings, Grassley stated they had “dampened enthusiasm in doing what we call the Second Step Act,” though he added that they are still “looking into what may be worked out.” The president continued by stating that if Democrats agree to certain elements pertaining to police enforcement, “it could be conceivable to get something done.”

While waiting for the Second Step Act to be passed, Durbin expressed anxiety about its chances of passing, citing Republican claims made during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. He placed criminal justice high on his priority list, though he acknowledged that legislation addressing crime and law enforcement “may be just as complex” as legislation addressing immigration, which is a notoriously difficult area of bipartisan cooperation on Capitol Hill.

Due to the fact that the midterm elections are less than 6 months away and “campaign-season politics surrounding criminal justice reform threaten broader GOP support,” Durbin and Grassley believe that a Second Step Act is required to implement sentencing changes made in the First Step Act by making them retroactive. In the meanwhile, as a few lone voices urge for the passage of such legislation, with Democrats in charge of the White House and both chambers of Congress, Republicans can expect a cacophony of allegations that Democrats are to blame for growing crime rates. According to Politico, this should make sentencing modifications that much more difficult.

Both Democratic and Republican Senate officials warn that EQUAL might still face a difficult path to ultimate passage, including a potentially lengthy discussion over amendments. Amid indications of an increase in violent crime in major cities and the upcoming November election, Republicans who oppose the bill would virtually surely seek to force vulnerable Senate Democrats to vote for strong amendments. Even Republican Sen. Chuck Grassley, who is not a co-sponsor but is openly pro-reform, has expressed reservations about whether EQUAL will receive enough Republican support in the Senate to pass.

As a result, the environment for criminal justice reform is becoming increasingly hostile. Only one senator, Sen. Tom Cotton (R-Ark), requested longer sentences at one point (he calls First Step Trump’s biggest blunder). An opinion piece published last week in the popular news magazine Newsweek claimed that:

“America does not suffer from an over-incarceration crisis in the year 2022.” On the contrary, we have a problem with under-incarceration,” says the author. As stated in the piece, Congress should put an end to “the jailbreak of reduced sentences and the greater civilizational suicide of ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act(H.R.3617)