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August 9, 2009

A crack-transition question from a public defender

I received via e-mail this inquiry from a public defender, which I was authorized to put up on the blog:

Given that H.R. 3245 is pending in the House and given that — according to F.A.M.M. — it will eliminate the crack/powder disparity completely if passed, I would like to know if attorneys in various federal districts have been able to continue sentencing hearings in crack cases until we know what will become of HR 3245?  Or is there some other creative crack sentencing strategy being employed in light of H.R. 3245?

Though this question does not directly focus on the issue of whether crack sentencing reform by Congress will be made retroactive, it does provide an effective reminder of all the transition issues and challenges posed by proposed sentencing reforms even before they become law.

August 9, 2009 at 03:42 PM | Permalink


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Is there any point to asking why is it not equally logical to increase penalties for dealing cocaine, rather than to lower them for dealing crack? The answer is, there is no point. The disparity argument is pretextual. The lawyer wants the criminal serving less time, to commit more crime, to generate more lawyer jobs.

I would like a new tort concept allowed by statute, of suing the judge and the defense lawyer when a party is injured by the prematurely released crack cocaine dealer. Because of the certain foreseeability of recidivism, the lawyer should compensate the victims of his carelessness. Because the lawyers have total control of the body, the criminal is an agent of the lawyers during the period of premature release.

Posted by: Supremacy Claus | Aug 9, 2009 6:29:02 PM

I think an important related question is what happens to mandatory minimum cases that are in the pipeline at the time the law changes. For example, if someone distributes more than 50 grams of crack today, is charged with it next week, and then HR 3245 is enacted next month while the charges are still pending, does the mandatory minimum apply? Because the penalty is decreased after commission of the offense, as opposed to increased, it is not an ex post facto issue.

Posted by: anon | Aug 9, 2009 6:52:22 PM

Posted by: anon,

My understanding is the offenders are generally given the more lenient of the guidelines in effect either when they committed their offense or when they are sentenced. And sometimes there are changes made that apply retroactively, though I believe that is much more rare.

Posted by: Soronel Haetir | Aug 9, 2009 7:03:48 PM


I understand that is true when the guidelines change. I am not as sure the same answer would apply if the statute changes. Even if the guidelines are lower, a defendant might still be subject to the higher mandatory minimum. I guess that is my question.

Posted by: anon | Aug 9, 2009 8:32:06 PM

If I had any crack cases I would continue them.
Unfortunately, most of the rock monsters and their suppliers (my clients) have moved on to black tar heroin.

As Marilyn Manson pointed out "rock is dead."

Posted by: Actual Federal Practitioner | Aug 9, 2009 10:52:55 PM


I see the distinction you are making between guidelines changes and statutory changes.

I would think that you cannot continue to charge someone and/or try someone under a statute that has changed, unless the new statute says "for cases arising before X date, apply the provisions of the old statute." If it doesn't say that, I would think that a trial court rendering a final judgment after the effective date of the new statute would be bound to apply the new statute. (This is just another way of saying that laws are generally presumed to apply retroactively, unless they expressly designate that they apply only prospectively, or unless retroactive application would violate some higher principle, such as the ban on ex post facto punishments.)

As an aside, I do not think you could get the benefit of the new statute if your case was on direct appeal (i.e., final in the trial court but not yet final for Griffin retroactivity purposes). Although you get the benefit of new constitutional ruling as long as it is announced while your case is on direct review, it seems that the calculus would be different with a statutory law. With a constitutional ruling, the fiction is that there is no actual *change* in the law, just a clarification, as we reach a better understanding of what the Constitution means. By contrast, a new statute is an acknowledged *change* in the law. With a new constitutional rule announced after the trial court's final judgment, therefore, an appeals court can still conclude that the trial court erred (at least according to the fiction) by not applying the newly-clarified rule. But with a new statute effective after final judgment in the trial court, the trial court applied the existing law correctly and thus there is no error for the appeals court to correct.

I have not done any research before posting, but this is my sense of how it works. If you really need to know the answer, I imagine this has come up before and is covered in relevant treatises/case law.

Posted by: Not an AFP, but play one on TV | Aug 10, 2009 11:42:21 AM

My experience in the Western District of Pennsylvania is that such motions would be looked upon in a favorable manner. Motions based upon the pendency of Chambers and guideline changes to take effect in the future have been granted by various members I have appeared in front of. This history bodes well for similar motions based upon legislative action. I would, however, in any motion cite Mr. Holder's comments until legislation passes.

Posted by: David B. Chontos | Aug 10, 2009 12:10:19 PM

Does anybody have an iodea of when some help will arrive for African American inmates? My husband has 25 more years to go UNLESS the crack law becomes equal well then he will be home within 24 months.

Posted by: inmates wifey | Aug 10, 2009 2:49:05 PM

So when this billed is passed the people that are already incarcerated would not have any benefits from this?

Posted by: lgibbs | Aug 12, 2009 6:55:18 PM

I want to know if the bill passes will it be retroactive, I hope it's fair and apply to everyone.

Posted by: ffigueroa04 | Aug 15, 2009 5:18:33 PM

When this bill is passed, they need to make it retroactive. It wouldn't be fair to pass this bill and not help the people already incarcerated.

Posted by: ffigueroa04 | Aug 20, 2009 10:26:04 AM

The politicians talk about the economy and how to fix it. So much money is being wasted keeping these non-violent prisoners in prison. My fiance received a 20-year mandatory minimum for selling crack. These sentences are outrageous and too many people are recieving these sentences and it's time to let them come home and have a life and be with their family.

Posted by: ffigueroa04 | Aug 20, 2009 10:30:50 AM

So can anyone tell me what happens when this is signed and passed by the President? Does it mean those who are currently incarcerated receive a departure? If so then how much time will be knocked off on a 57 month sentence? My wife is currently serving her 57 months and is waiting for this to be passed by everyone involed through the goverment. My main concern is does the passing effect everyone incarcerated as well as those waiting to be sentenced?

Posted by: Richard Hauser | Jul 29, 2010 8:28:37 PM

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