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October 31, 2007

Wondering about the ripples of the truly consequential crack sentencing news

Though the de facto execution moratorium created by SCOTUS continues to get lots of attention (archive here), the most consequential sentencing news this week actually concerns drug sentencing.  Specifically, as noted here at The BLT, tomorrow the US Sentencing Commission's new reduced crack guidelines become effective.  And though this change will have the biggest impact if the USSC decides to make it retroactive — which could reduce the sentence of 20,000 current federal prisoners — a lot of folks should be impacted by the new crack change right away.

I have heard that a number of crack sentences have been put off while the USSC's proposed amendments were pending.  If this is true, we ought to see a significant up-tick in drug sentencings over the next few months (and a blip in the USSC's drug sentencing data for the last fiscal year).  In addition, there surely are many — perhaps hundreds or even thousands — of crack sentences current on appeal.  I wonder how circuit courts will sort out reasonableness claims and other arguments once the new guidelines become effective.

Last but not least, I wonder if some defendants currently serving time under the old guidelines might bring new appeals even before the USSC decides on retroactivity.  Arguably, the recent Wilson ruling from the Georgia Supreme Court adds heft to claim that sentences under the old guidelines are constitutionally problematic.  Additional support for new constitutional arguments against the old crack sentence might come from commentary like this new Washington Times op-ed from J.C. Watts and Pat Nolan.  Consider these snippets from their piece:

We are both conservative Republicans who are convinced that this country needs a more rational approach to apprehending and prosecuting those who traffic in cocaine.... [The 100-1 sentencing] disparity was passed in 1986 and based largely on the assertion that crack cocaine was more dangerous than powder cocaine, that it was instantly addictive and that it caused violent behavior. Since then, copious scientific evidence and U.S. Sentencing Commission analysis have shown that these assertions, which were not supported by sound data, were exaggerated or even outright false.  The disparity has resulted in a hugely disproportionate number of black Americans sentenced under this mandatory-minimum law.  While the intent was not to single out one racial demographic over another, the impact of these laws amounted to discrimination....

Federal authorities are squandering huge amounts of resources on small cogs in the cocaine distribution network: One-third of all federal cocaine cases involve an average of 52 grams, the weight of a candy bar. This is a terrible misuse of the time and talent of federal law enforcement and prosecutors. Plus, it has clogged the federal courts with cases that can easily be handled by the states.

October 31, 2007 at 11:29 AM | Permalink


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Question: Under the approach advocated by the Georgia Supreme Court in Genarlow Wilson's case, would these new guidelines support valid 8th Amendment claims regardless of their retroactivity? Are there any district courts that based on past opinions may be apt to accept such an argument?

Posted by: JustClerk | Oct 31, 2007 11:38:31 AM

I think defendants sentenced under the old crack provisions have a MUCH weaker 8th Amendment claim than Genarlow's. That said, I do not think such a claim is frivolous and I'd bring such a claim for the right client if the USSC does not make the new amendments retroactive.

Relatedly, I think there might be various 5th Amendment arguments to make as well. But, with luck, the USSC will eliminate many of these question by simply making its new guideline retroactive.

Posted by: Doug B. | Oct 31, 2007 1:10:38 PM

What you didn't quote from that op-ed is telling, I think:

After almost 21 years, the 100-1 crack and powder cocaine sentencing disparity has resulted in federal resources being misdirected on small-time drug dealers and not on stopping the flow of drugs into the country. It is now time for Congress to fix this law in order to focus federal law enforcement resources on winning the war on drugs.

The fact remains that the change to the Guidelines is not that significant. And the reason the Guidelines are set up the way they are is so they can precisely track the statutory ranges. That's why the real "fix" needs to come from Congress, if it's going to come at all.

Posted by: Steve | Nov 1, 2007 9:07:01 AM

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