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April 22, 2008

A counsel(-less) perspective on crack retroactivity

This news article, headlined "Failure emerges in call for shorter crack sentences: Many inmates are not given lawyers," reports on an interesting (and troublesomely disparate) aspect of the implementation of the USSC's new crack guidelines:

As federal courts begin deciding whether thousands of prisoners should receive shorter crack cocaine sentences, some judges are telling convicts that they won't get lawyers to help them argue for leniency.  As a result, some prisoners are being left to argue on their own against skilled prosecutors, raising questions about fairness in cases that already have been widely perceived as unjust.

The recalculations come after a 20-year debate over racial disparities in cocaine sentences.  Most crack cocaine defendants are black; most powder cocaine defendants are white and receive much less severe sentences.  In what's seen as a first step toward addressing the disparity, the U.S. Sentencing Commission issued new recommendations last year for lighter penalties.

But many of the 20,000 eligible prisoners say they're too poor to hire lawyers to ask for shorter sentences.  Many judges have appointed federal defenders to represent poor prisoners, saying it ensures the requests will be handled efficiently. Judges have the sole authority to appoint those attorneys.  Other judges, however, have said attorneys aren't needed for what should be a straightforward sentencing matter.

The right to an attorney after criminal indictment and during trial and sentencing is undisputed. But several federal appeals and district courts have concluded that judges generally don't have to appoint attorneys for convicted criminals who are seeking corrected sentences. Without lawyers, some defendants with legitimate requests will be overlooked, said federal defenders who are screening many of the crack cocaine cases. "We're being left to fend for ourselves," said Eyvonne Garrett, 40, a prisoner in Ft. Worth, Texas, who was denied an attorney and a shorter sentence. "Without an attorney, we don't have a voice."...

Jason Hawkins, an assistant federal defender in Dallas, said Garrett appeared to be making a legitimate argument but couldn't compete against experienced prosecutors.  "Not appointing counsel allows the government to run over people as if they're mere speed bumps in this process," he said. "A litigant with very little schooling is not going to be able to go up against a career prosecutor filing 24-page briefs."

UPDATE:  Steve Sady now has this long post on this topic at the Ninth Circuit Blog.  The post's heading provides a sense of his perspective: "Counsel Required For Fair And Efficient Implementation Of The Retroactive Crack Amendment."

April 22, 2008 at 08:51 AM | Permalink

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Comments

"Other judges, however, have said attorneys aren't needed for what should be a straightforward sentencing matter."

Has any judge actually said this? I would have preferred a direct quote. There is nothing 1) straightforward about sentencing; and 2) crack retroactivity is inherently novel.

At least in most Districts I know of, the FPD is the default appointment.

Posted by: S.cotus | Apr 22, 2008 9:44:40 AM

S.cotus, I know that some courts believe that this is simply a mathematical application of the new Guidelines, which, by the way, are again being amended to correct the massive mathematical screwup that the Sentencing Commission apparently missed. For those courts, the retroactive application of the amended Guidelines is simply a matter of calculating the new guideline range and imposing a sentence within it. It is not a resentencing for which defendants should be afforded counsel.

Posted by: steve | Apr 22, 2008 10:49:22 AM

As an experienced federal criminal defense lawyer with about ten of these cases pending, courts which have expressed the view that this is simply a matter of recalculating the guidelines are flatly wrong.

The updates to the Presentence Reports prepared by the Probation Department in my district address topics, in addition to the guidelines scoring, such as "public safety considerations" (presumably based upon the offense and perhaps the prisoner's criminal history), "post-sentencing conduct" (record while in custody and programs completed), and "pre-release planning considerations" (does he have somewhere to live upon release). Any of those issues can prevent reduction even if the defendant's guidelines are lower.

Further, sometimes it is not clear on the face of a case (from the indictment, judgment of conviction and sentence and presentence report) whether a defendant is not entitled to a reduction. For example, if the gov't had conceded in a pleading or verbally at sentencing that a defendant was not responsible for as large a drug amount as stated in the presentence report, unless someone brings that to the court's attention, a defendant could erroneously be denied relief.

There are far too many potential issues for these defendants to be denied counsel.

Posted by: John MInock | Apr 22, 2008 4:18:38 PM

As an experienced federal criminal defense lawyer with about ten of these cases pending, courts which have expressed the view that this is simply a matter of recalculating the guidelines are flatly wrong.

The updates to the Presentence Reports prepared by the Probation Department in my district address topics, in addition to the guidelines scoring, such as "public safety considerations" (presumably based upon the offense and perhaps the prisoner's criminal history), "post-sentencing conduct" (record while in custody and programs completed), and "pre-release planning considerations" (does he have somewhere to live upon release). Any of those issues can prevent reduction even if the defendant's guidelines are lower.

Further, sometimes it is not clear on the face of a case (from the indictment, judgment of conviction and sentence and presentence report) whether a defendant is not entitled to a reduction. For example, if the gov't had conceded in a pleading or verbally at sentencing that a defendant was not responsible for as large a drug amount as stated in the presentence report, unless someone brings that to the court's attention, a defendant could erroneously be denied relief.

There are far too many potential issues for these defendants to be denied counsel.

Posted by: John MInock | Apr 22, 2008 4:20:12 PM

On another matter.... Are concerned parties aware that even when the courts hand down an amended sentence it is not a true adjustment because of the way the Bureau of Prisons calculates good conduct time? Basically a 57 month sentence reduction only amounts to 50 months being taken off a sentence! Another hard reality to deal with considering when the judge ruled on the 3582 his comments were "......reduction commensurate with the revised guidelines and precludes the Court from a full resentencing in which the Court would consider a greater reduction."

Posted by: NLS | Apr 22, 2008 9:34:42 PM

Steve, I would like to see some specific quotes... so far, nobody has really explained why counsel is NOT needed other than "it is really simple."

Posted by: S.cotus | Apr 23, 2008 7:34:22 AM

What are the physical signs that someone is using crack? Is it normal to sleep for more than 12 hours? Please help!!!

Posted by: Erectile Dysfunction | Nov 26, 2009 11:57:11 AM

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