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April 29, 2009

DOJ's basic game-plan while urging crack sentencing reform from Congress

Here is a copy of the written testimony from Assistant Attorney General Lanny Breuer submitted to the Senate Judiciary Committee for this morning's hearing on federal crack sentencing (basics here).  The last two substantive paragraphs provide an outline of what DOJ is doing internally and also how it plans to proceed in upcoming cases:

Earlier this month the Attorney General asked the Deputy Attorney General to form and chair a working group to examine federal sentencing and corrections policy. The group’s comprehensive review will include possible recommendations to the President and Congress for new sentencing legislation affecting the structure of federal sentencing. In addition to studying issues related to prisoner reentry, Department policies on charging and sentencing, and other sentencing-related topics, the group will also focus on formulating a new federal cocaine sentencing policy; one that completely eliminates the sentencing disparity between crack and powder cocaine but also fully accounts for violence, chronic offenders, weapon possession and other aggravating factors associated – in individual cases – with both crack and powder cocaine trafficking. It will also develop recommendations for legislation, and we look forward to working closely with Congress and the Sentencing Commission on this important policy issue and finding a workable solution.

Until a comprehensive solution – one that embodies new quantity thresholds and perhaps new sentencing enhancements – can be developed and enacted as legislation by Congress and as amended guidelines by the Sentencing Commission, federal prosecutors will adhere to existing law.  We are gratified that the Sentencing Commission has already taken a small step to ameliorate the 100:1 ratio contained in existing statutes by amending the guidelines for crack cocaine offenses.  We will continue to ask federal courts to calculate the guidelines in crack cocaine cases, as required by Supreme Court decisions.  However, we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio.  Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.

This is a nice effort to dodge some of the questions I raised in this "now what" post, but this line still jumps out: "we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio."  Given that DOJ recognizes that federal sentencing judges have authority to "create their own quantity ratio," and given that DOJ now seeks to "completely eliminate[] the sentencing disparity between crack and powder cocaine, why shouldn't prosecutors simply recommend in each on-going crack case that sentencing judges should not embrace (or should I say "create") a 1:1 ratio going forward?  Or, perhaps the better question is, shouldn't prosecutors now just express agreement with defense counsel in on-going crack case when they suggest that a 1:1 ratio be adopted by a sentencing court?

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Comments

Onlly one problem - unless (or until) the mandatory minimum statutes are amended or repealed, the five and ten year mandatory minimums will continue to be the governing law.

Posted by: anon | Apr 29, 2009 10:24:27 PM

The mandatroy minimums require the filing of an 851 motion that is at the discrection of the USAO. Of course as of this morning Main Justice has issued zero guidiance to the USAO offices.

Also of note is that yesterdays testimony seems to encourgage the strong use of 924(c) enhancements. Many USAO offcies hold the 924(c)over a Ds head to encourage a plea to the underlying drug counts in order to move cases.

Posted by: lawdevil | Apr 30, 2009 10:40:40 AM

If you're referring to motions under 21 USC 851, that only applies, to my understanding, to increased senternces based on PRIOR CONVICTIONS. It has nothing to do, so far as I understand it, with the minimum penalties spelled out in 21 USC 841. Additionally, while it may simply be a matter of semantics, there are no "enhancements" under 924(c). That is a stand alone statute/sentencing provision. Now, if you are referring to the two point enhancement for a firearm under 2D1.1, that is a different matter.

Posted by: anon | Apr 30, 2009 11:46:24 AM

1:1 ratio seems fine. Problem gets trickier when you ask which quantity/sentence set to use: current powder guidelines, current cocaine base guideline, or something in between?

Equalizing a ratio, admirable as it is, does not inform a sentencing court what the absolute number (in grams, or months) should actually be.

Posted by: Anon23 | Apr 30, 2009 11:59:46 AM

Based on the testimony at the hearing, as well as the tenor of AAG Breuer's remarks, I have no doubt that the plan is to lower crack penalties down to the curent level for powder cocaine. Senator Feinstein expressed that she personally favored a 10:1 ration, but DOJ was clear that they wanted 1:1, and I cannot BELIEVE they would equalize it by raising powder penalties at all.

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