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October 26, 2007

Is there any principled basis for DOJ opposition to the crack amendment being retroactive?

20071022crack Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive.  The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:

As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive.  The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.

The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.

The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work.  The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.

"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM).  Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.

Yet to weigh in on the retroactivity issue is the U.S. Department of Justice.  But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline.  I can tell you that our comment will reflect our opposition to retroactive application."

I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy. 

Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant.  But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation.  Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.

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1 U.S.C. § 109. Repeal of statutes as affecting existing liabilities
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

Posted by: | Oct 26, 2007 11:50:46 AM

There is, of course, a statutory basis for not making the change retroactive, but also the USSC has statutory authority to make it retroactive. So, the arguments from statutory text is a wash.

My broader question is what good argument is there that the USSC should not use its statutory authority to give effect to a policy/guideline change that it has long advocated for.

Posted by: Doug B. | Oct 26, 2007 12:26:00 PM

Isn't avoiding a logjam in the district courts a principled reason enough? Just because you might not agree with the principle doesn't mean it's not a principle.

Posted by: Steve | Oct 26, 2007 2:12:15 PM

I was struck by the small number of affected cases in the Ninth Circuit, according to the graph. The Ninth, by virtue of its size, usually is high on any list by number of cases.

Posted by: Kent Scheidegger | Oct 26, 2007 3:06:15 PM

But, Steve, won't there be a bigger log-jam resulting from lots and lots of folks raising complicated constitutional claims through 2255 action if the amendment is not made retroactive? Indeed, won't everyone need to file such a claim, even if rejected by lots of lower courts, in order to preserve the issue in case SCOTUS eventually rules in favor of the claim?

Posted by: Doug B. | Oct 26, 2007 3:07:24 PM

Doug,

Can you lay out the principles that might, in your mind, generally justify not making a reduction retroactive?

Congress has made the determination that generally, even if a crime is repealed, criminal liability for acts before repeal is not extinguished. Doesn't it generally flow from that principle that if a penalty structure is reasonable (i.e. not unconstitutional), a change in that structure should generally be applied prospectively only? The Commission hasn't read its retroactivity authority this way, but is such a reading principled or not?

Have a great weekend.

Posted by: | Oct 26, 2007 5:34:35 PM

Since you asked, 5:34:35 PM, here goes:

I think if a reduction was based on a view that a few outlier cases are being sentenced too harshly, or that other upward adjustment for other reasons (e.g., enhancements based on violence) were a way to create a more balanced system, then a decision of non-retroactivity might have a principled basis.

But here the USSC has long said, supported by expert analysis, that crack sentences have been much too long. Why then should defendants sentenced before the USSC had the courage to pursue a guideline change not get the benefit of the USSC's long overdue reduction to the crack guidelines?

Posted by: Doug B. | Oct 27, 2007 4:37:03 PM

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