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March 12, 2014

Attorney General to testify about drug guideline reform before US Sentencing Commission

I am pleased and very intrigued to now see from this agenda that the first scheduled witness at the US Sentencing Commission's public hearing scheduled to be held tomorrow morning to receive testimony on proposed amendments to the federal sentencing guidelines is none other than the Honorable Eric H. Holder, Jr., Attorney General of the United States. I was already excited about what would develop as the USSC heard from folks about its proposal to cut the drug sentencing guidelines across the board (discussed here), but I now think this hearing could end up being historic as well as interesting. 

I cannot recall the US Attorney General ever testifying directly before the US Sentencing Commission, even in the wake of Blakely and Booker and all the uncertainty and reform that was being robustly discussed by all the branches during the transformation of the federal sentencing system and the guidelines as a result of major SCOTUS ruling. And though I am not an expert on USSC history, I think this may be the first time that a sitting Attorney General has testified directly at a USSC hearing.

This development confirms my view that AG Holder wants federal drug war reform to be a big part of his legacy, and I think any and everyone interested in the federal sentencing system and the broader national war on drugs ought to pay very close attention to what takes place tomorrow morning in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC.

March 12, 2014 at 10:38 AM | Permalink

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Professor Berman, AG Holder told me Monday he's testified once before to the U.S. Sentencing Commission, so this won't be a "first." Still, it will be a newsy event as you forecast. Carrie Johnson, Justice Correspondent, NPR

Posted by: Carrie Johnson | Mar 12, 2014 11:15:48 AM

As Ms. Johnson says, this might not be the first time the Attorney General has testified before the Commission, but it will be the first time he has done so directly in behalf of drug pushers.

Posted by: Bill Otis | Mar 12, 2014 11:39:13 AM

Carrie, I suspect Holder previously testified before USSC when he was deputy AG during Clinton administration. Can you check that? Do others know?

Posted by: Doug B. | Mar 12, 2014 12:45:13 PM

I saw AG Holder testify regarding retroactivity of the crack cocaine amendment due to the FSA. He supported a more limited application of retroactivity than what the Commission ultimately supported.

Posted by: Kara Gotsch | Mar 12, 2014 1:05:01 PM

Bill Otis, you write, "As Ms. Johnson says, this might not be the first time the Attorney General has testified before the Commission, but it will be the first time he has done so directly in behalf of drug pushers." Upon reflection, slightly over the top, would you not agree? Tends to take away from your otherwise credible arguments.

Posted by: Amy | Mar 12, 2014 4:16:17 PM

Amy --

Who will benefit from the proposal to reduce sentences for drug pushers more directly and immediately than drug pushers?

Posted by: Bill Otis | Mar 12, 2014 4:34:03 PM

Shortly after the AG issues a press release about the destruction heroin is causing nationwide, he is going to go before the USSC and advocate for lower sentences for heroin dealers? Makes sense. Yes, that makes perfect sense. And, then we should make the new Guidelines retroactive, which will result in incarcerated heroin dealers being released early. Because we really need MORE heroin dealers on the streets. With all due respect to the AG, I think he may be more concerned with his "legacy" than he is with doing what is in the best interest of public safety.

And, just to preempt all of the nasty responses from those on this blog who only like talking in an echo chamber--heroin dealers who typically get prosecuted in federal court are not "low level first time offenders with an addiction." There may be a valid argument for reducing some of the drug guidelines. But, an across-the-board reduction is a mistake.

Posted by: Zachary B. | Mar 12, 2014 5:27:50 PM

I actually am expecting AG Holder to call for a more nuanced approach to reductions than across the board, Zachary. I could be wrong, but the prior AG release/discussion of the heroin/opiate problem leads me to think he is going to the USSC to advocate something a bit different that the USSC has proposed.

Also, Bill Otis, consistent with the name of the Department he represents, I would assume AG Holder is going to the USSC in order to advocate directly on behalf of justice. Your vision of justice is likely different than his, but he is the one who has the job of setting policy for this Department, while you (and I) just have the role of sniping from afar.

Posted by: Doug B. | Mar 12, 2014 5:52:02 PM

I hope you are right, Professor Berman.

Posted by: Zachary B. | Mar 12, 2014 7:25:12 PM

Bill, my friend, you ask "Who will benefit from the proposal to reduce sentences for drug pushers more directly and immediately than drug pushers?" Well, society benefits when justice is done. Sentences that are too long promote injustice just as do sentences that are too short.

Posted by: Michael R. Levine | Mar 12, 2014 10:00:12 PM

Hi Michael --

You and I disagree in general about what length sentences ought to be, but, putting that to one side, even if I were to assume arguendo that overall justice would be served by lowering drug sentences, I submit that it would remain the case that, as I was saying to Amy, drug dealers would be the most direct and immediate beneficiaries of such a change.

Posted by: Bill Otis | Mar 12, 2014 10:41:42 PM

Last time I read the proposal the cut off was at level 36, but the people who have been in prison since the early 90s are going to be above that level, and I know of at least one who was not violent but had a DUI charge prior which pushed her above that level 36, so she will continue to rot at the tax payers expense. Her gun charge is aiding and abetting 942c, she gave the Informant a pistol he asked for while the Informant was wiretapped.

In 2008, the average sentence for federal crack cocaine drug offenders was 114.5 months, compared with an average sentence of 91 months for federal powder cocaine offenders. New legislation reduced the ratio to 18-to-1. The act also eliminated the current mandatory minimum five-year sentence for simple possession of crack cocaine, which is the only federal mandatory minimum sentence for simple possession of a drug, even by a first-time offender.

When the Crack Cocaine Laws were reformed in 2008, almost 12,000 federal prisoners were eligible to ask the Courts for a sentence reduction. Despite the concerns of "tough on crime" proponents like Senator Grassley, the crime rate did not surge to all-time highs. After the enactment of the Fair Sentencing ACT (FSA) and the release of over 7,000 federal prisoners, the nation's crime rate is the lowest it's been since the 1950's.

Although it is true that early releases mean prisoners will be out sooner, Sen. Grassley's statement that "the deterrent effect of imprisonment will be reduced" seems to contradict his own admission that, "crime rates are now at their lowest level in 50 years." Concerns about violent drug offenders with violent crime histories are valid, but should not overshadow the reality that those without past histories of violence are receiving sentences as lengthy and severe as those with histories of violent crime.

Public outcry has been directed towards the draconian mandatory minimum sentencing that judges are often compelled by unjust laws to impose, even in instances where such lengthy sentences do not serve the interests of justice or the need for rehabilitation. But what about those federal inmates who have fallen through the cracks of the recent sentencing reform trend? Those that were given severely long sentences, but weren't sentenced under a mandatory minimum? Those first-time offenders with no violent crimes that received their sentences under the guidelines before the effect of those severely harsh sentences were realized or acknowledged by the courts or congress?

My name is Therese Crepeau. I was convicted of a cocaine/crack conspiracy in 1994. My conviction called for a sentence of 135 months. Plus 60 months consecutive for a gun charge. At sentencing, by a "preponderance of the evidence," I was held accountable for 1238 kg of cocaine and crack instead of the "in excess of 5 kg" I was convicted of. Instead of 195 months, I was sentenced to a monstrous 420 months; that is 30 years for the conspiracy and a consecutive 5 years for the gun charge, more than double the 16 yr 3 mo sentence my conviction demanded. Thirteen years after I was sentenced, Derrick Kimbrough, whose conviction was identical to my own, was given the 180 month mandatory minimum sentence his conviction demanded, rather than the 228-270 months the prosecutor was shooting for. For Kimbrough, justice won the day.

Since I was sentenced, especially after Apprendi v. NJ was decided in the Supreme Court, cases have been decided and laws have been passed that help to ameliorate the grave injustices that people like me were subjected to, ironically enough, in the name of justice. And yet, few of those changes have had any effect on the sentences of people like me because of something known as "retroactive application."

Without disparaging the court system or congress, or even detracting in any way from the progress they have made in sentencing reform, I wonder how it is possible for a reasonable person to say something is unconstitutional, but follow that up with, "it's not retroactive." How is it possible to say, "We realize this is unconstitutional and will amend our actions now and in future proceedings," then say in the next breath, "Oh, but it's too late for you, the damage is done." I applaud those who realize that change is necessary and are taking steps to right those wrongs, but in so doing, do not turn a blind eye or a deaf ear on those who have fallen through the cracks.

Written by:

Therese Crepeau #04858-032

Posted by: chris | Mar 13, 2014 3:40:26 PM

interesting!

"Her gun charge is aiding and abetting 942c, she gave the Informant a pistol he asked for while the Informant was wiretapped. "

Sounds like entrapment to me and legal grounds to kill the informant and any govt agent involved in backing them up.

Posted by: rodsmith | Mar 16, 2014 1:44:47 AM

Do you have this is a paper format to where I can send this to my son?

Posted by: Perri | Apr 5, 2014 2:21:11 AM

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