Tuesday, October 15, 2013

Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett arguments

As mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications.  I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.

Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues.   A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences.  I am likely fixated on this notion of a "finality fixation"  because I am currently working on a symposium article on this topic.  Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.

At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.  

Point 1:  Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.

Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism.  (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense.  See Table 6 of USSC report.)

Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2).  The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from. 

Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences.  Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2).  (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification.  Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)

In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality."  And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence.  Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present. 

Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases.  As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness.  And that reality fascinates and frustrates me.

Am I silly, dear readers, to be so fascinated and frustrated by all this?  I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.

Related posts on Blewett:

October 15, 2013 in Examples of "over-punishment", Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, December 24, 2012

Latest USSC data on retroactivity of crack guidelines reduced by FSA

I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity."  The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."

Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive.  That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). 

Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons.  The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data. 

Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around.  If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.

December 24, 2012 in Detailed sentencing data, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Friday, July 29, 2011

"Crack cocaine: One woman's tale"

The title of this post is the headline of this first-person account of the impact of the new crack federal sentencing guidelines appearing in the Chicago Tribune (and forwarded to me by a helpful reader). This piece is authored by Stephanie Nodd, who is in prison in the Coleman Federal Correctional Institution in Florida, and here are excerpts:

Looking back, I know I did something wrong, but I am also sure that I did not need 30 years in prison to learn my lesson.  I am due a second chance, and I plan to make the best of it....

In 1988, just after my 20th birthday, I met a man named John who promised me cash if I helped him set up his new business.  His business was selling crack cocaine. I helped him for a little over a month in return for money I used to pay bills and buy groceries.  After about six weeks, I cut off all ties with John and moved myself and my kids to Boston to start a new life.

We were living in Boston when I was indicted on drug charges in Alabama.  I returned to take responsibility for my mistake.  I prayed I would not have to serve any time because of my clean record and limited involvement.  I could not have been more wrong....

I could not give the prosecutors any information because I did not know anyone.... Meanwhile, John cooperated against everyone, including me. I was eventually charged as a manager in the drug conspiracy and found guilty at trial.  Even though I did not have a criminal record, I was sentenced to 30 years in federal prison.  The year was 1990. George H.W. Bush was president, and no one knew what email was.  I was 23 years old.

I have spent the last two decades behind bars.  Whenever new corrections officers ask me what my sentence is and I tell them 30 years, their first question is always the same: "Who did you kill?"

Earlier this year, the U.S. Sentencing Commission voted to reduce penalties for crack cocaine crimes.  On June 30, the commission voted to apply the new reforms to people serving the long prison sentences required by the old law.  Some people, including some members of Congress, are against retroactivity because they think it will give dangerous criminals a break.  As someone who has already served 21 years in federal prison for a first-time, nonviolent crack offense, I think it's important for the public to get a different perspective.

The truth is that many people are serving sentences that are far longer than I believe is necessary.  I have met women whose husbands, after getting caught selling drugs, turned around and cooperated against their wives in exchange for shorter sentences.  Some of these women had little or no involvement in the drug offense for which they are serving decades in federal prison....

I have tried to stay positive and make the best of a bad situation.  I received my GED, completed college courses and earned other licenses that will allow me to compete for a job when I am finally released.  Thanks to the U.S. Sentencing Commission's vote, I could be released by the end of this year.  I can finally see the light at the end of the tunnel. I know I am not the same woman who kissed her babies goodbye 21 years ago, but I can't wait to be reunited with my children and to meet my new grandchildren.

July 29, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (48) | TrackBack

Friday, July 01, 2011

US Sentencing Commission makes new crack guidelines retroactive

As detailed in this official press release, as expected the USSC "voted unanimously ... to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010." Here is more from the Commmission's press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. ...

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction.  The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades.  The average sentence for these offenders, even after reduction, will remain about 10 years.  The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive.  Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses.....

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission.  The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

This New York Times report on the decision provides some notable quotes in reaction:

Calling the difference between crack and powder “cultural, not chemical,” Jim E. Lavine, the president of the National Association of Criminal Defense Lawyers, said that the old sentencing policy placed the heaviest penalties on minorities and the poor.  “A civilized society doesn’t mete out punishment based on a defendant’s culture or skin color,” Mr. Lavine said....

A number of lawmakers had opposed retroactive sentence reductions, arguing that they would endanger communities. Representative Dan Lungren, Republican of California, said in an interview that he was “very disappointed” in the commission. Mr. Lungren said he supported the 2010 law in part because it was not retroactive.  “That was not our intent,” he said.

Some recent related posts:

July 1, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, June 30, 2011

US Sentencing Commission voting today on making new FSA crack guidelines retroactive

As previously noted here and as indicated in this official public notice, this afternoon at a public meeting, the US Sentencing Commission will vote on whether and how to make the new reduced crack offense federal sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  Still, the smart money is on the Sentencing Commission voting to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporter on the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

I will be on the road and likely off-line until very late tonight, but the folks at FAMM are all over this issue, as evidenced by this new item on FAMM's homepage:

Today! Historic Sentencing Commission vote on retroactivity

At 1 p.m., the U.S. Sentencing Commission will vote on retroactivity of the crack guidelines.  FAMM's Mary Price told the Associated Press, "there is a tremendous amount of hope out there ... there is a potential that people could see their sentences reduced, some quite dramatically."  Learn more -- read FAMM's latest factsheet, "Myths and Facts on Crack Guideline Retroactivity" and other resources.  FAMM will also report live from the vote on Twitter.

June 30, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 27, 2011

US Sentencing Commission slated this week to vote on new FSA crack guideline retroactivity

As indicated in this official public notice, this Thursday, June 30, a public meeting of the US Sentencing Commission is scheduled at which the USSC is expected to vote on whether and how to make the new reduced crack offense sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  The Sentencing Commission has posted here on its website a lot of interesting links to the input the USSC has received about this consequential issue.  (Enterprising researchers and students can learn a lot about the politics and practicalities of federal drug sentecing by reviewing these materials.)

Based on the (incomplete and non-insider) buzz that I have heard surrounding this issue, I predict that the Sentencing Commission will vote to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 27, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 23, 2011

Another take on the consequences of SCOTUS crack retroactivity work in Freeman

A thoughtful reader sent me and allowed me to post here his take on today's Freeman ruling by the Supreme Court (basics here, opinion here), which seeks to counter my first-cut, from-the-gut reaction that that because of the 4-1-4 split of the Justices "few other defendants will benefit from [Freeman's] win." Here is that take:

In Freeman v. U.S., (plurality opinion) (available here), the Supreme Court reversed the Sixth Circuit’s ruling that a defendant who entered into a Rule 11(c)(1)(C) plea agreement was ineligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines that lowered the Guideline range.

The plurality reasoned that because, even in cases where the sentence imposed varies from the Guideline range, a sentencing judge is required to consider the Guidelines when deciding whether to accept and impose the specific sentence agreed upon by the parties in an 11(c)(1)(C) plea, an 11(c)(1)(C) sentence is "based on" the Guidelines.  Because § 3582(c)(2) applies in cases when a sentence was "based on" a subsequently amended Guideline range, an 11(c)(1)(C) defendant is therefore eligible for § 3582(c)(2) relief.

[Note: Justice Sotomayor provided the decisive fifth vote in a separate concurrence, based on different grounds from the plurality opinion: Justice Sotomayor concluded that Freeman was entitled to § 3582(c)(2) relief because his plea agreement expressly provided that his sentence was based on the Guidelines.  Justice Sotomayor stated that in the future, "[n]othing prevents the Government from negotiating with a defendant to secure a waiver of his statutory right to seek sentence reduction under § 3582(c)(2), just as it often does with respect to a defendant’s rights to appeal and collaterally attack the conviction and sentence."  In the future, citing Marks v. U.S., 430 U.S. 188, 193 (1977), the government may invoke Justice Sotomayor’s concurrence (and her view that § 3582(c)(2) rights are waivable) as expressing Freeman’s holding, on the ground that her concurrence expressed the "narrowest grounds" for the decision.

The Supreme Court, however, has questioned MarksSee, e.g. Nichols v. U.S., 511 U.S. 738, 745 (1994) (declining to follow Marks’ approach).  The "narrowest ground" approach is arguably inapposite in cases like Freeman, where, as Justice Sotomayor’s concurrence states, the conclusions "differ as to the reason why," that is, the rationales for the plurality and the concurrence are not "nested" within one another like "Russian dolls."  See Note, Plurality Decisions in the Supreme Court of the United States, A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 113 (2007) (citing King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991) (en banc)).  Arguably, in cases like Freeman, "lower courts should treat plurality decisions as binding only for the result that a majority of the court would support based on their stated rationales." Id. at 130 (citing Rapanos v. U.S., 547 U.S. 715, 810 (2006) (Stevens, J., dissenting). In Freeman, the majority agreed only to reject the dissenters’ view that 11(c)(1)(C) defendants are categorically ineligible for § 3582(c)(2) relief.  Whether some of these defendants might be ineligible on the separate grounds stated by Justice Sotomayor (because there is no mention of Guidelines in their plea agreement, or because there is an express waiver of § 3582(c)(2) in their plea agreements) remains an open question.]

June 23, 2011 in Implementing retroactively new USSC crack guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Defendant barely wins in Freeman, as SCOTUS clarifies/complicates guideline retroactivity rules

The final big federal sentencing case on the Supreme Court docket this term is Freeman v. US concerning the eligibility of some defendants to get the retroactive benefit of the Sentencing Commission reducing guidelines ranges.  Today Freeman prevailed, though what seems like a 4-1-4 opinion in his favor likely means few other defendants will benefit from his victory.  Here are the basics coming from the start of the first opinion in Freeman:

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join.

The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retro-active amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guideline amendment is adopted, §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.

The question here is whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage of justice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive Guideline amendments.

Five Members of the Court agree that this judgment must be reversed. The Justices who join this plurality opinion conclude that the categorical bar enacted by the Court of Appeals finds no support in §3582(c)(2), Rule11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea,including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guide-lines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction.

Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove un-justified. There is no reason to deny §3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.

JUSTICE SOTOMAYOR would reverse the judgment on a different ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that § 3582(c)(2) relief is not available in the typical case.  But unlike the dissent she would permit the petitioner here to seek a sentence reduction because his plea agreement in express terms ties the recommended sentence to the Guidelines sentencing range.

June 23, 2011 in Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (38) | TrackBack

Wednesday, June 01, 2011

Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive

June kicks off with big US Sentencing Commission doings:  the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive.  A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive.

Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for (partial) retroactivity of the new reduced crack guidelines:

Holder described the Obama administration’s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive.  Applying the measure to those previously sentenced could affect about 12,000 inmates....

“We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law,” Holder said.  Retroactive reductions in sentences shouldn’t apply to those who possessed or used weapons in committing their crimes or offenders with “significant” criminal histories, Holder said.

The full text of AG Holder's written testimony and of many others testifying today before the USSC are linked from this page.  Here is a key passage from AG Holder's testimony:

The Commission’s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees.  In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The Administration’s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set.  However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.

This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me (though the devil can and will often be in the details).  I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 1, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, May 05, 2011

USSC request comments on possible retroactivity of new crack and drug guidelines

As detailed in this document described as a "Reader-Friendly Version of the Commission's Request for Comment on Retroactivity," the US Sentencing Commission is now requesting public comment by June 2, 2011, concerning "whether Amendment 2 [of its most recent set of Guideline amendments sent to Congress], pertaining to drug offenses, should be included as an amendment that may be applied retroactively to previously sentenced defendants."  Here is more background and details from this document:

On April 28, 2011, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2011, unless Congress acts to the contrary.  Such amendments and the reasons for amendment subsequently were published in the Federal Register.  See 76 FR 24960 (May 3, 2011).

Amendment 2, pertaining to drug offenses, has the effect of lowering guideline ranges.... The Commission seeks comment regarding whether, pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), this amendment, or any part thereof, should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants.

The Commission also requests comment regarding whether, if it amends §1B1.10(c) to include this amendment, it also should amend §1B1.10 to provide guidance to the courts on the procedure to be used when applying an amendment retroactively under 18 U.S.C. § 3582(c)(2)....

Amendment 2, pertaining to drug offenses, contains three parts.  The Commission seeks comment on whether it should list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants.

Part A changes the Drug Quantity Table in §2D1.1 for offenses involving crack cocaine. This has the effect of lowering guideline ranges for certain defendants for offenses involving crack cocaine.

Part B contains both mitigating and aggravating provisions for offenses involving drugs, regardless of drug type. The mitigating provisions have the effect of lowering guideline ranges for certain defendants in drug cases, and the aggravating provisions have the effect of raising guideline ranges for certain defendants in drug cases.

Part C deletes the cross reference in §2D2.1(b)(1) under which an offender who possessed more than 5 grams of crack cocaine was sentenced under §2D1.1. This has the effect of lowering guideline ranges for certain defendants for offenses involving simple possession of crack cocaine.

For each of these three parts, the Commission requests comment on whether that part should be listed in subsection (c) of §1B1.10 as an amendment that may be applied retroactively....

If the Commission does list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants, should the Commission provide further guidance or limitations regarding the circumstances in which and the amount by which sentences may be reduced? 

May 5, 2011 in Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

Wednesday, April 06, 2011

US Sentencing Commission makes guideline crack reductions permanent

As detailed in this official press release from the US Sentencing Commission, the USSC today promulgated a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010."  Here is more:

Commission chair, Judge Patti B. Saris (District of Massachusetts) said, “The Fair Sentencing Act was among the most significant pieces of criminal justice legislation passed by Congress in the last three decades. For over 15 years, the Commission has advocated for changes to the statutory penalty structure for crack cocaine offenses. The Commission applauds Congress and the Administration for addressing the sentencing disparity between crack cocaine and powder cocaine offenders.”

No crack cocaine offender will see his or her sentence increase based solely on the quantity thresholds the Commission set today in the federal sentencing guidelines. As a result of today’s action, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

Based on an analysis of the most recent sentencing data, the Commission estimates that crack cocaine offenders sentenced after November 1, 2011, will receive sentences that are approximately 25 percent lower on average as a result of the changes made to the federal sentencing guidelines today. Moreover, the Commission estimates that these changes may reduce the cost of incarceration for crack cocaine offenders in the federal prison system in the future.

Today’s vote by the Commission will set the triggering quantities of crack cocaine for the five and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. This action maintains proportionality with other drug types insofar as the quantity of illegal drugs, including crack cocaine, required to trigger the five- and ten-year statutory mandatory minimum penalties is subject to the same base offense level no matter the drug type.

Pursuant to statute, the Commission must consider whether its amendment to the federal sentencing guidelines implementing the Fair Sentencing Act should apply retroactively. The Commission plans to hold a hearing on June 1, 2011, to consider retroactivity, and voted today to seek public comment on the issue.

April 6, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack

Wednesday, February 02, 2011

US Sentencing Commission forecasts impact of making new crack guidelines retroactive

I just notice this important new document posted on the US Sentencing Commission's website, which is a USSC memorandum titled "Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine Offenses Made by the Fair Sentencing Act of 2010 and Corresponding Proposed Permanent Guideline Amendment if the Guideline Amendment Were Applied Retroactively."  The details of this 60+ page memo are as intricate as the title, though the basic story concerns how many offenders sentenced under the old 100-1 crack guidelines (and the amended version applicable from 2007 to 2010) would benefit from retroactive application of the new 18-1 crack guidelines that the passage of the Fair Sentencing Act produced.

The detailed analysis in this memo defies simplistic summary, especially because lots of assumptions and alternative ideas are built into the crack re-sentencing number-crunching.  But these two passages provide the highlights of one key part of the analysis: 

This section of the memorandum provides an analysis of the estimated impact of New Crack Amendment BOL 26, should it be made retroactive, on offenders incarcerated as of October 1, 2010, in the federal prison system.  This analysis was prepared by the Commission's Office of Research and Data (ORD).  ORD estimates that 12,835 offenders sentenced between October 1, 1991, and September 30, 2009 (fiscal years 1992 through 2009), would be eligible to receive a reduced sentence if New Crack Amendment BOL 26 were made retroactive.  If these offenders were to receive reduced sentences pursuant to New Crack Amendment BOL 26, the dates on which they would be released would span more than thirty years....

Based on [additional] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.7 percent (or 37 months, from 163 months to 126 months).  Table 6 shows that 7,612 offenders (76.9%) would receive a sentence reduction of 48 months or less.  Conversely, 286 offenders (2.9%) would receive a sentence reduction of more than 10 years.

It is interesting to compare this forecast of the impact making the new FSA-inspired crack guidelines retroactive with the USSC's detailed data concerning the actual impact of the 2007 crack guideline reduction being applied retroactively (with the USSC's latest data run here). The 2007 reduction benefited over 15,000 crack prisoners, though the amount of sentence reduction was only around 2 years of imprisonment. Thus, its seems making the FSA-inspired crack guidelines retroactive will actually effect a slightly smaller number of defendants, but could have an even greater impact on those defendants' sentencing terms.

February 2, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, November 24, 2010

Student note about retroactive application of 2007 guideline crack amendments

I just saw via SSRN this notable new student note forthcoming in the Michigan Law Review, which is titled "Falling Through the Crack: How Courts Have Struggled to Apply the Crack Amendment to 'Nominal Career' and 'Plea Bargain' Defendants."  Here is the abstract:

In 2007, after a decade of debate, the Federal Sentencing Commission instituted an amendment that decreased the sentences of some defendants who had been convicted of offenses involving crack cocaine.  A few months later, the Sentencing Commission passed another amendment that rendered this decrease in sentence retroactive.  Nearly three years after the passage and retroactive application of the Crack Amendment, however, two separate circuit splits have emerged as courts have struggled to uniformly interpret and apply the Sentencing Commission’s directives.  The first circuit split emerged in regards to the eligibility of a subset of "career offenders" to the benefits of the retroactive application of the Crack Amendment.  The second circuit split emerged in regards to whether a subset of defendants who plead guilty to crack offenses pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) prior to the passage of the Crack Amendment are eligible to receive the benefits of its retroactive application.

This Note first argues that the language of the applicable statutes and policy statements and specific actions taken by the Federal Sentencing Commission indicate that the subset of "career offenders" in the first circuit split are not eligible for a subsequent reduction in sentence pursuant to the Crack Amendment.  This Note then argues, however, that the lack of explicit directives from the Sentencing Commission with regards to the “plea bargain” defendants in the second circuit split indicates that these defendants are eligible to receive the benefits of the retroactive application of the Crack Amendment.  Because the Sentencing Commission instituted and rendered retroactive the Crack Amendment to decrease the disparity in sentence between defendants convicted of crack and powder cocaine offenses, it would be contrary to the motive of the Amendment to exclude these defendants from its benefits.

November 24, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Friday, October 15, 2010

US Sentencing Commission action to implement FSA and new crack guidelines

As detailed in this public notice, the United States Sentencing Commission has a public meeting scheduled for this afternoon in DC, and the agenda includes "Possible Vote to Promulgate Emergency, Temporary Amendment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   These proposed amendments were previously set out by the USSC here.

Relatedly, the USSC has now posted here the materials "received by the Commission in response to its request for public comment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   Here are links to all this stuff:

U.S. Department of Justice

Rep. John Conyers, Jr., Chair of the House Committee on the Judiciary and Rep. Robert C. "Bobby" Scott, Chair of the House Subcommittee on Crime, Terrorism, and Homeland Security

Senator Richard J. Durbin

Probation Officers Advisory Group

Federal Public and Community Defenders

National Association of Criminal Defense Lawyers

Families Against Mandatory Minimums

American Civil Liberties Union

The Sentencing Project

Citizen Letters

UPDATE:  As detailed in this news release, on late Friday "the United States Sentencing Commission voted to promulgate a temporary, emergency amendment to the federal sentencing guidelines consistent with the statutory changes to crack cocaine and other drug trafficking offenses made by the Fair Sentencing Act of 2010 [which] will take effect on November 1, 2010."

The release explains that the "Commission estimates that the new average sentence for trafficking in crack cocaine will be 101 months, a 13.7 percent decrease in average sentence length. The Commission estimates that more than 1,500 prison beds will be saved after five years and that more than 3,800 beds will be saved after ten years."

October 15, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, October 02, 2010

Effective review of the five new SCOTUS criminal justice cases

As noted in this prior post, this past week the US Supreme Court accepted five new criminal cases for its upcoming Term.  This article in the Wisconsin Law Journal, headlined "High court accepts five criminal cases," reviews the group.  Here is the article's coverage of the two sentencing cases:

[T]he court will decide whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission amended the Sentencing Guidelines for crack cocaine, if the judge had already accepted a plea deal with the defendant, in Freeman v. United States, No. 09-10245.  The U.S. Supreme Court has agreed to answer this question, reviewing a decision from the 6th Circuit which held that case law precluded modification of a sentence imposed pursuant to a plea deal.

In that case, the defendant was charged with one count of crack possession, among other charges. He entered a plea agreement that included a sentence of 106 months.  After his agreement was accepted by the trial judge and his sentence was entered, the U.S. Sentencing Commission amended the Sentencing Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive.  The defendant then sought to reduce his sentence accordingly.

But a U.S. District Court refused to do so, and the 6th Circuit affirmed.  “[T]he district court did not indicate that failing to resentence [the defendant] resulted in a miscarriage of justice. … [The defendant's] original 106-month sentence remained inside the guidelines range for his crime, even after the amendment,” the court said.  His 106-month sentence fell at the bottom of the range before the amendment and at the top of the range after the amendment, it noted....

[In another] case, arising within the Seventh Circuit, the court will decide whether a conviction for resisting arrest counts as a violent felony under the Armed Career Criminal Act, in Sykes v. U.S., No. 09-11311.  The Seventh Circuit concluded it was, finding that eluding a police officer is “purposeful, violent and aggressive.”  U.S. v. Sykes, No. 08-3624 (7th Cir., Mar. 12, 2010).

October 2, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, September 28, 2010

Lots of crime (and some punishment) in big pile of cert grants from SCOTUS long conference

As detailed in this post at SCOTUSblog, the Supreme Court this morning granted certiorari in fourteen new cases. The full orders list is here, and I think more than a third of the cases involve criminal justice issues:

Freedman and Sykes are the cases that should most interest sentencing fans. Neither is a blockbuster-in-waiting, but both should provide some of the new (and old) Justices to showcase their current thinking on various federal sentencing issues.

September 28, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, September 27, 2010

"Make new crack law retroactive"

The title of this post is the headline of this opinion piece appearing in today's National Law Journal authored by Harlan Protass and Mark Harris. Here is how it starts and ends:

Last month, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams. Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Now Congress needs to finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less....

Opportunities to rethink — and cleanly remedy — social injustices are rare. The new crack sentencing bill signed into law last month presents just such a chance, one that lawmakers should not pass over. To do otherwise is to perpetuate mistakes that have taken a generation to fix.

September 27, 2010 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (43) | TrackBack

Monday, September 20, 2010

Local perspective on the impact of new reduced crack sentences

This local story from Indiana, which is headlined "Crack, powder cocaine nearer equal footing," provides an interesting local view on some of the consequences of the new federal sentencing laws for crack offenses. Here are excerpts:

Two months after Congress voted in favor of lowering federal sentencing guidelines again for people convicted for crack cocaine, local defendants are already seeing changes. More changes could come, though, as local officials continue to advocate for more balance between people convicted of crack cocaine possession versus powder cocaine possession.

"I think the criminal defense community is just grateful this change has occurred," Jerry Flynn, an attorney with the local Federal Community Defenders, said....

The most recent federal legislation calls for [all crack/powder sentences] to be brought down to a ratio of 18:1. Although the U.S. Sentencing Commission has not enacted that part yet, U.S. Attorney David Capp said his office in Hammond is already acting for new defendants as though it's in place.

The changes to minimum sentencing has the bigger effect, though, Flynn said, because several years ago judges were given the authority to sentence defendants outside the guidelines. Minimum sentences, however, are hard and fast.

That doesn't mean he and other public defenders won't continue to fight for more fairness, Flynn said. He wants to see the ratio brought down to 1:1, meaning they would be exactly the same for either form of cocaine. The U.S. House of Representatives had voted in favor of the equal ration, although the U.S. Senate backed the 18:1 ratio. Flynn said he was encouraged support for 1:1 was already there....

Flynn said he hopes the sentencing commission, if it can, will also make the newest changes retroactive. Part of the problem is that the newest legislation isn't clear on the issue, he said. "I know I have already started receiving questions (from defendants)," he said. "It could be extremely significant for several, several people."...

Capp said he doesn't expect the changes to affect local cases too much because so many of the cases deal with larger amounts of drugs and usually include other charges, such as carrying a weapon during a drug transaction. "(We) focus our efforts on the worst offenders, the worst of the worst," Capp said.

His office does charge for smaller amounts of drugs, though, but that could change. Because states might now actually have tougher sentences than the federal government, the U.S. Attorney's office could start partnering with local prosecutors more and let them take over those cases, Capp said.

September 20, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, August 09, 2010

Seeking "on-the-ground" reports on what is going on with crack sentencings

It has now been almost two weeks since the House of Representatives voted in favor of the Fair Sentencing Act of 2010, and almost a full week since the FSA became law.  Though I have now seen lots of editorials from large and small papers praising the modification of crack mandatory sentencing provisions, I have yet to see a single story about how the new law is starting to impact actual crack sentencings.

There is a practical reason I am in a rush to figure all this out: there are, on average, over 100 crack sentencings in federal court every week.  And I had been hearing that a whole lot of crack sentencings had been put on hold after the Senate passed the FSA way back in March.  Further, the US Sentencing Commission now has less than three months to conform the crack guidelines to the intricate (and not always pro-defendant) provisions of the FSA.  So I wonder is there a rush to get sentencings done now, or is there more delay, or does this vary district-to-district and courtroom-to-courtroom?

I hope folks might use the comments or send me e-mail with any and all notable post-FSA-enactment crack sentencing reports.  Thanks!

August 9, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact | Permalink | Comments (7) | TrackBack

Tuesday, July 27, 2010

Lengthy Third Circuit discussion of crack retroactivity issue that has split the circuits

A Third Circuit panel decision today US v. Flemming, No. 09-2726 (3d Cir. June 27, 2010) (available here), provides a thoughtful and comprehensive account of a little sentencing issue that has divided the circuits. Here is how the lengthy opinion in Flemming starts and ends:

Glenn Flemming was sentenced in February 2005 to 175 months’ imprisonment for federal firearm and crack cocaine offenses committed in 2002. After the United States Sentencing Commission retroactively lowered the offense levels for most crack cocaine offenses by two levels, Flemming moved for a reduction of sentence under 18 U.S.C. § 3582(c)(2).  The District Court denied his motion, concluding that it lacked authority to reduce Flemming’s sentence because he was a career offender under U.S.S.G. § 4B1.1.  On appeal, Flemming argues that, despite his status as a career offender, he is eligible for a sentence reduction under § 3582(c)(2) because the District Court granted him a downward departure under U.S.S.G. § 4A1.3 after concluding that the career offender enhancement overstated the seriousness of his criminal history, and instead sentenced him within the Guidelines range for crack cocaine offenses.

The narrow issue presented in this case — whether a career offender who receives a § 4A1.3 downward departure under a pre-2003 edition of the Sentencing Guidelines to the Guidelines range for crack cocaine offenses is eligible for a sentence reduction under § 3852(c)(2) — is one of first impression in our Court, but one that has divided our sister circuit courts.  The First and Second Circuits, as well as a divided panel of the Fourth Circuit, have concluded that such a defendant is eligible for a sentence reduction. The Eighth and Tenth Circuits, as well as a divided panel of the Sixth Circuit, have disagreed.

Though we do so through a somewhat different analysis, we join the First, Second, and Fourth Circuit Courts in concluding that such a defendant is eligible for a sentence reduction under § 3582(c)(2).  Accordingly, we vacate the District Court’s order and remand for further proceedings....

Application of the rule of lenity is called for only in rare cases, and thus we stress the narrowness of our holding.  We conclude that, under a pre-2003 edition of the Sentencing Guidelines, a career offender who is granted a § 4A1.3 downward departure to the Crack Cocaine Guidelines range is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). Accordingly, we vacate the District Court’s order and remand this case for the Court to exercise its discretion to determine whether, and to what extent, a reduction in Flemming’s sentence is warranted.

July 27, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (0) | TrackBack