Sentencing Law and Policy

USSC has first cut of data on crack retroactivity

I am very pleased to report that the US Sentencing Commission has available here the first release of data on the retroactive application of the crack amendment on its website.  Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The data represent cases received and coded by the Commission by April 14, 2008.

I have reason to believe that this data will be regularly updated, perhaps every month.  Such updates may be very important because, when looking through this data and hearing case-processing stories from different regions, it seems likely that different districts are taking different approaches to the order in which they address crack retroactivity cases.  Some districts, it seems, may be trying to process denials before grants, others vice versa, and still others using other methods for case triage.  Obviously, different case-processing plans could produce short-term (but perhaps not long-term) differences in district data that do not really represent substantive differences in how these crack retroactivity cases are being adjudicated.

UPDATE:  A local angle on this data is reported in this local news story, headlined "Western Va. district leads U.S. in resentencing crack cases."

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."

A constitutional crack bleg from an attorney of note

I got a call from a notable attorney who asked for help on a crack-related claim of unconstitutionality.  Here is his follow-up "bleg":

As I stated today in our telephone call, I was Brian Gall's trial attorney and want to take on a new fight.  I am interested in attacking the constitutionality of the statutory mandatory minimum for crack cocaine as found in 21 USC 841(b)(1(A)(ii).  Specifically, that statute creates a mandatory minimum sentence of 120 months for possession of over 50 grams of crack and for over 5 kilos of powder cocaine.

My client’s specific situation is that he pled to one count of possession of crack, with the factual basis of 85 grams of crack.  He had no prior criminal history and was 19 when arrested and 20 years old when sentenced.  In 2006 His guideline range was 120-135 months and because he refused to cooperate with the government he received the minimum sentence he could under the guidelines and 21 USC 841(b)(1(A)(ii), i.e. 120 months.

He has now filed a motion for a sentence modification under the new crack guidelines, which put him at a range of 87-108 months, but the government is opposing this due to the mandatory 120 month sentence found in 21 USC 841(b)(1(A)(ii). I would like to file a motion attacking the constitutionality of 21 USC 841(b)(1(A)(ii) mandatory minimum, as it employs the same 100:1 ratio that has been modified in the amended sentencing guidelines as well as criticized by the Supreme Court in Kimbrough.  Any help, ideas, research and motion drafting assistance from any other attorneys facing a similar situation or interested in taking on this fight would be greatly appreciated.  I can be reached at The Alternative Law Office of Marc Milavitz, 1733 Canyon Blvd., Boulder, CO 80302; (303) 442-2166 (phone); (303) 440-4515 (fax).   

Any assistance you or anyone else can give me is greatly appreciated.

CSM piece has latest crack retroactivity news

This article in the Christian Science Monitor, headlined "As many crack convicts are freed early, will crime rise?", includes some of the latest data on the implementation of crack retroactivity.  Here is how the piece starts:

In an effort to eliminate a legal inequity — one that has hit African-Americans especially hard — federal judges have begun reducing the sentences of thousands of crack-cocaine offenders. Some police groups and prosecutors, as well as US Attorney General Michael Mukasey, assert that in trying to right a historic wrong, violent criminals are headed en masse back to the streets.

So far, indications are that this is not the case because the release process has safeguards built in. Statistics from the US Sentencing Commission, as well as interviews with federal public defenders and criminal-justice experts, indicate that federal prisoners who are to be released early are predominantly nonviolent and have good conduct records while in prison.  Of the 19,500 drug offenders eligible over the next 30 years to apply for early release, 3,417 have had their sentences reduced as of Monday.  Of the 1,500 inmates eligible for immediate release, dozens so far have been let go in the past month.

"There has been no release of a flood of violent criminals," says Michael Nachmanoff, federal public defender for the Eastern District of Virginia. "The people who are being released ... overwhelmingly had cases where there was no violence whatsoever and who were given unduly harsh sentences. And now, their sentences are being reduced by a modest amount."

Some recent related posts:

• "Keep Track of Crack Facts"
• Important report from NC about (not) implementing new crack guidelines
• Great press coverage of crack retroactivity at one month
• More great local coverage of crack retroactivity realities

More great local coverage of crack retroactivity realities

Local newspapers continue to provide interesting and valuable coverage of the local realities of implementing the new federal sentencing guidelines for crack offenses.  Here are links to notable new stories from Arizona and Florida and South Carolina:

• From the Arizona Republic here, "Cocaine, prison, racial bias, reform: Sentencing rules seek fairness in crack cases"

• From the Ocala Star-Banner here, "Family hopes for early release of man imprisioned on crack cocaine charges"

• From the Greenville News here, "Penalty gap closing for powder and crack cocaine"

"Keep Track of Crack Facts"

The title of this post it the title of this terrific web memo published by The Heritage Foundation.  Here is the start of a must-read: 

Earlier this year, Attorney General Michael Mukasey predicted that if Congress allowed new guidelines granting retroactive application of lower prison sentences to go into effect on March 3, up to "1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release," with 3,800 eligible within the first year.  Proponents of retroactivity accused the Attorney General of trying to scare the public into thinking the new law would be a "get-out-of-jail-free card" for all crack convicts, including career criminals.  They cited Sentencing Commission projections that fewer prisoners—almost none of them repeat offenders—would be eligible for immediate early release.

The actual statistics may prove everyone wrong. As of April 2, the Federal Bureau of Prisons (BOP) had received 3,107 judicial orders for early release of crack convicts.  Every workday since March 3, 135 felons, on average, have received sentence reductions from federal judges under the new guidelines.

So who is getting out of jail early? Are they first-time and nonviolent offenders, whom the Attorney General and others argued should be the sole beneficiaries of retroactivity?  Are federal judges protecting public safety, as predicted by proponents of blanket retroactivity, and keeping violent and career criminals locked up?  Have any of those just released committed new drug-related offenses—or other violent crimes—and been re-charged by state or federal authorities? Will any of the predictions prove correct?

No one knows the answers to these and other important questions, because no one is keeping track of the statistics. But dramatic changes in public policy, such as these new sentencing guidelines, need to be evaluated and studied to inform future policymaking, and any such study must be based on facts.  To inform future Sentencing Commission proceedings, deliberation by Congress, and the public debate, the Department of Justice should collect and regularly publish facts on the effect of the retroactivity provision, particularly as regards prison releases and recidivism.  Further, Congress should require the department to provide these regular reports to the appropriate congressional committees to ensure that reporting does not lapse after a change in Administration or departmental priorities.

BRAVO!!

Great press coverage of crack retroactivity at one month

Richard Schmitt has this effective piece in today's Los Angeles Times documenting that, a month after the new federal crack guidelines became retroactive, many defendants have not gotten sentence reductions.  The article is headlined, "Freedom eludes many crack inmates: Though new rules have reduced sentences for some, others remain behind bars because of bureaucratic delays and Justice Department opposition."  Here are excerpts:

New federal sentencing guidelines designed to end the racially tinged disparity between prison sentences for powder and crack cocaine dealers went into effect a month ago, and so far more than 3,000 inmates have had their prison terms reduced. Dozens have been released, including at least 15 in California, but many others who should have been released have not. Attorneys involved in the process blame bureaucratic delays as well as opposition from the Justice Department.

In North Carolina, which has the country's fifth largest population of crack offenders eligible for early release, four inmates have been freed out of some three dozen who lawyers say should have been released, in some cases, years ago. The delays appear to be due in part to a procedural bottleneck: Federal judges there did not approve a plan for processing requests for sentence reductions until five days before the new rules were to go into effect. Courts in parts of Texas and south Florida also appear to be lagging....

As of Tuesday, the federal Bureau of Prisons said it had received 3,077 signed orders from judges modifying the sentences of prisoners nationwide. The prisons bureau won't say how many have actually been released; even after the reductions, some inmates will still have much time to serve.

In Dallas, one judge has refused to allow federal defenders to represent crack offenders in his court, saying they have no right to counsel at this stage of the proceedings. That has left hundreds of inmates having to file jailhouse petitions to gain their freedom.

After that ruling, the federal public defender in Dallas, Richard Anderson, sent out a mass mailing to several hundred eligible inmates to help them prepare their cases. Many of the inmates' applications are incomplete or have errors. The complexities of federal sentencing law have caused added confusion. "The playing field isn't very level," Anderson said. Some judges have recently begun to reconsider the approach and are more readily appointing lawyers for inmates, he said.

The delays stand in sharp contrast to the experience in other regions of the country where the new rules have unleashed an outpouring of federal clemency. The process seems to be working best in jurisdictions where prosecutors, judges and probation officers were working weeks and in some cases months in advance of the effective date to mitigate delays....

Among California crack offenders gaining early releases was a Fresno woman, Stacey Candler, 34, who was sentenced to 15 years in prison in 1996 after police caught up with her live-in boyfriend, a crack dealer. Also released was Vernon Watts, 37, of Sacramento, whose 22-year-sentence was shaved by about four years. "I have been waiting for this for a long time," Watts said in an interview after his release....

Though I often criticize the traditional media for their coverage of sentencing issues, this LA Times article and other similar press reports from local papers have been extraordinarily valuable in providing a picture of how crack retroactivity is working — and not working — in different parts of the country.  I am hopeful (but not especially optimistic) that the US Sentencing Commission will soon provide some comprehensive data and analysis of how crack retroactivity is going.  I would guess that the USSC is working hard on this issue, but that we will not see any public data and analysis for some time.

A judge explains the problem with prosecutorial crack reduction resistance

A helpful reader sent me news of this recent ruling on a crack sentencing reduction motion, authored by Chief Judge James Jones of the Western District of Virginia, which includes this notable footnote:

This district is reported to have the fourth largest number of defendants who qualify for a reduction in sentence under the U.S. Sentencing Commission’s policy on retroactivity of the amended crack cocaine guidelines.  Unfortunately, it appears that the United States Attorney for this district is objecting to reduction in every case, even those which provide for a reduction in sentence of only a few months.  While the Department of Justice opposed the retroactivity of the amended guidelines, once the Sentencing Commission unanimously decided on retroactivity — a decision which Congress has not overruled — a per se objection to reduction does not serve the public interest.  For example, the court is required to consider the public safety in determining whether to reduce a particular sentence, see U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.10 cmt. n.1(B)(ii) (Mar. 3, 2008), and the government’s blanket objection in all cases does not assist the court in making that decision, and, in fact, hinders it.

Important report from NC about (not) implementing new crack guidelines

This Charlotte Observer story, headlined "N.C. slow to cut crack sentences," provides a fascinating account of the challenges in implementing the new retroactive crack sentencing guidelines.  Here are snippets from a must-read (with key points for commentary in bold):

Federal judges across the country have released hundreds of crack cocaine inmates or reduced their sentences under new guidelines that took effect this month.  But in North Carolina, the courts have shortened sentences for just three people, public defenders say. 

At least 14 other inmates prosecuted in the Charlotte region qualify for immediate release but remain incarcerated, according to Claire Rauscher, public defender for Western North Carolina. More prisoners statewide may be in the same situation, according to officials who are examining records to determine who is eligible....

Court officials say they are working as quickly as possible through caseloads among the largest in the nation. They said they would resolve more cases in coming weeks. "This is a new law and the first couple of weeks always take the longest," said Frank Johns, clerk of the U.S. District Court for Western North Carolina, which covers Charlotte....

Prisoners in other states have moved faster through the courts.  As of Friday, the federal government said it had received about 1,900 court orders reducing prisoners' sentences.

At least 400 court orders were received the week of March 3, the day the new guidelines took effect, said Michael Nachmanoff, public defender for the U.S. District Court for Eastern Virginia.  Nachmanoff said at least seven offenders from his district were immediately released from prison March 3 because the courts started working on the cases in February.  "There are many districts that have had success," Nachmanoff said. "Unfortunately, North Carolina is behind the curve."...

Of the 14 remaining Western North Carolina cases where public defenders have pending requests for an inmate's immediate release, almost all have been delayed because the U.S. Attorney's Office has failed to file paperwork, said Rauscher, the public defender.... Rauscher said most of the inmates eligible for immediate release are nonviolent offenders.  They live in halfway houses. "I'm very frustrated," she said....

A spokeswoman for Western North Carolina U.S. Attorney Gretchen Shappert declined to comment.  Shappert has been an outspoken critic of the sentence reductions, testifying to the Sentencing Commission last year that it would put dangerous criminals back on the streets. Shappert testified that their release would harm law enforcement successes that help make neighborhoods in Charlotte and elsewhere less violent.  "Crack dealing is not a victimless crime," she said. "It holds entire communities hostage."

Though I am not one to quickly throw around serious accusations, this press report suggests a kind of "prosecutorial nullification" might be keeping some NC defendants in federal prison longer than justice demands.  As the article explains, the US Attorney in this key NC district is personally against allowing any crack defendants getting reduced sentences.  She certainly can and perhaps eventually will make these arguments to the federal judges considering defendants' motions for reduced sentences.  But rather than make her arguments in each case and letting a judge decide (as the law now requires), it appears the US Attorney in this key NC district may be indirectly blocking the consideration of these motions for reduced sentences by failing to file needed paperwork.

I hope anyone directly involved with or knowledgeable about what is going on in the Western District of NC might report on whether my concerns about "prosecutorial nullification" are founded.  Of course, a recent case around Duke reminds us that some prosecutors in North Carolina can be motivated by concerns other than true justice.  I hope the facts of what's going on in this new setting does not prove to be another case of an NC prosecutor gone wild.

Still more local coverage of crack sentence reductions

Continuing the regular drumbeat of local reporting on reduced crack sentences, here are stories from Vermont and West Virgina:

• "Jailed crack offenders from Vermont might be released"
• "28 Crack Offenders Released in W.Va."

I assume that the US Sentencing Commission and the Department of Justice are trying to keep track of reduced crack sentences, but I am not sure either will report their data publicly anytime soon.  I wonder if anyone else is trying to keep a head-count of exactly how many offenders have secured early release under the new crack rules.

This morning's crack sentencing coverage

Another day and another set of newspaper articles and commentaries on crack retroactivity.  Here's a sample:

• From Chicago Tribune here, "Crack cocaine prison terms may be eased"

• From the Louisville Courier-Journal here, "New rule may cut jail time for 300 Ky. inmates"

• From San Francisco Chronicle here, "Drug laws' absence of justice"

• From the Washington Times here, "Review with caution"

Early reports on crack retroactivity implementation

This new Washington Post article — headlined "Government Starts Cutting Sentences Of Crack Inmates: Bureau of Prisons Processes 400 Orders" — provides news from the front lines in the implementation of the new crack guidelines.  Here are the basics:

The federal government said yesterday that it has received hundreds of court orders reducing the prison sentences of crack cocaine offenders in the two days since new sentencing guidelines took effect. A spokeswoman for the Federal Bureau of Prisons could not say how many prisoners have already been released under the U.S. Sentencing Commission's new guidelines, but the bureau has processed about 400 orders modifying prison terms nationwide.

In addition, the New York Sun has this new piece, headlined "Judges Grant Release Of 3 City Crack Offenders." 

On a slightly different but related front, The Huffington Post has this new commentary titled "Clinton's Crack Cocaine Apology: Too Little Too Late?".

UPDATE:  Here are some more local stories about crack retroactivity implementation:

• From the News Virginian here, "Crack offenders vying for less prison time"
• From The Tennessean here, "New sentencing rules for crack-related crimes may free 10 prisoners"

Some of the newspaper coverage of now effective crack retroactivity

Though the USSC's official website still doesn't have any official notice that its new crack guidelines are now officially retroactive (background here), the traditional print media has lots of crack coverage.  Here are just a few links:

• From the AP here, "Drug Sentencing Guidelines Take Effect"

• From the Richmond Times Dispatch here, "Crack offenders released early"

• From USA Today here, "Bill Clinton admits 'regret' on crack cocaine sentencing"

• From the Washington Times here, "Inmate releases begin under new guidelines"

New lower USSC crack guidelines now officially retroactive

There has already been a lot of local and national action concerning the retroactive application of the lower US Sentencing Commission crack guidelines.  But today (Monday, March 3, 2008) is the official effective date for the retroactive application of the new guidelines. 

Though I suspect we will see lots and lots of news stories about the implementation of these new guidelines in the days and weeks ahead, I already see interesting local pieces from North Carolina and Florida on this issue.  Also FAMM has this helpful press advisory.   As I have suggested before, I think we can and should expect some crack March Madness as a host of complicated legal issues surrounding crack retroactivity get hashed out in lower courts.

Here is a recap of some of the most important/enduring posts I have covering crack retroactivity issues at the national and local levels:

NATIONAL DEBATE

• Q&A on crack retroactivity
• Interesting new op-ed on crack sentencing and clemency
• Mukasey's crack testimony and reactions from public policy groups
• Division in the Justice Department over crack retroactivity
• A retroactive litmus test on leading Democratic candidates
• Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
• House hearing on crack sentencing disparity
• Latest FSR issue covers crack sentencing

LOCAL REALITIES

• One federal district trying a single judge approach to crack retroactivity
• How crack retroactivity is being applied in Massachusetts
• Notable new resource for those working on crack resentencing
• Interesting crack retroactivity letters sent around to judges
• More coverage of crack retroactivity realities
• Another story about the local implementation of the new crack guidelines
• The crack retroactivity story in my backyard

UPDATE:  CNN.com has this new piece headlined "Some crack convicts could soon be set free."  Disappointingly, I do not see anything new on the USSC's official website yet.  Perhaps the USSC hopes everyone will get all the important details they need concerning what's happening on crack retroactivity from the media and bloggers.

Q&A on crack retroactivity

US News and World Report has this new piece, headlined "The Impact of Releasing Crack Offenders,"  that includes a Q&A with Judge Reggie Walton.  Here how the piece introduces the Q&A:

Judge Reggie Walton, a U.S. district court judge in Washington, D.C., is hardly known for giving soft sentences. But as chair of the Criminal Law Committee for the Judicial Conference, he has been one of the most outspoken critics of the cocaine sentencing disparity. U.S. News spoke with Walton about his views.

Is AG Mukasey rightful to fear men and his former judicial colleagues?

As detailed in this CNN story, Attorney General Michael Mukasey continues to preach that his former colleagues (namely, federal district judges) cannot be trusted to make sound and safe decisions concerning which defendants get the benefit of the new federal crack guidelines.  Here are details from the CNN piece:

Attorney General Michael Mukasey on Monday urged police officers to join his effort to push Congress to prevent what he fears will be a dumping of thousands of violent criminal offenders on the streets of U.S. cities in coming weeks.....

"Nearly 80 percent of those eligible ... have a prior criminal record," Mukasey told hundreds of members of the Fraternal Order of Police. "This tells us those who are eligible for early release are very likely to commit another crime." Mukasey also said 955 of those eligible [right away] for release are male. "We believe that this statistic will help to alleviate the concern expressed by some that the eligible offenders were simply girlfriends just caught up with their boyfriends," Mukasey said....

Mukasey said he is willing to discuss with Democratic lawmakers what should be the proper ratio in crack and powder cocaine sentencing but first wants to ensure the rules are changed to sharply curtail the releases.

Members of the Congressional Black Caucus have taken the lead in pressing for greater fairness. They point to the Commission's statistic that 32 percent of the first wave of offenders who could be released have had been convicted of only one crime or none at all prior to the charge that led to their conviction. The Justice Department said that means more than two-thirds of the offenders are in a criminal history category that suggests they will commit another crime.

The subject will be explored Tuesday in a House subcommittee hearing where Democratic officials say they plan to call for lighter sentences for those convicted of crack offenses and reject the Justice Department arguments.

The AG's monday afternoon speech is available at this link, and here are key paragraphs from the text on crack sentencing:

I understand that well-intentioned people can view statistics differently. But, these statistics are important for two reasons. First, they confirm what the Department has seen in the field and what our prosecutors have experienced in court.  These offenders are often violent criminals who are likely to repeat their criminal activities. Second, these statistics – all taken from the Commission’s own study – undermine the allegations that there are great numbers of one-time crack users who were simply caught in the wrong place and the wrong time. Furthermore, the Department has suggested a way to address that concern: Congress should limit the retroactivity so that only first time, non-violent offenders could have their sentences reduced, and the amount of the reduction could not surpass the two-levels allowed by the Commission. This would address the Department’s public safety concern and allow any non-violent offenders to be released early, and permit those who need it to get the benefit of the Bureau of Prisons’ pre-release programs that help prevent or at least diminish the incidence of recidivism.

With respect to the crack-powder sentencing ratio itself, the Department has acknowledged that honest men and women can disagree about what the appropriate sentences should be for these crimes, and how they should differ from sentences for other drug crimes. The Department is committed to being a part of those discussions and to helping develop fair and just punishment for crimes committed in the future. But we believe that any reforms in the area of crack sentences have to satisfy two important conditions: First, any reforms should come from Congress, not the Sentencing Commission; and second, reforms should not be applied retroactively.

Some recent related posts:

• House hearing Tuesday on crack sentencing disparity
• AG Mukasey comes out swinging on crack retroactivity
• Mukasey's crack testimony and reactions from public policy groups
• Division in the Justice Department over crack retroactivity
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Interesting new op-ed on crack sentencing and clemency
• Latest FSR issue covers crack sentencing

Interesting new op-ed on crack sentencing and clemency

Two of my favorite co-authors, Profs Marc Miller and Steve Chanenson, have this new op-ed in the Dallas Morning News headlined "Bush should give clemency to fix unfair crack sentences."  Here are excerpts:

Crack is back before Congress. Attorney General Michael Mukasey has come out against a new sentencing policy designed to bring a partial measure of fairness to the sentencing of federal crack offenders.  Crack is creeping back into the presidential campaign, where there is great need for leadership on this fundamental issue of race and justice....

Last year, the [US sentencing] commission proposed and Congress accepted a modest adjustment in the sentencing guidelines that prospectively reduces crack penalties and narrows the quantity-based punishment gap at points. Bravo.

Administrative concerns often require new rules to be forward-looking only. In this case, however, the commission tried to correct punishments that its expert analyses revealed were much too harsh and affected blacks unfairly.  So the commission voted unanimously to give federal judges the power to apply the new crack rules retroactively. Bravo again.

The commission's retroactivity vote does not mean automatic release for the roughly 19,500 current inmates convicted of crack offenses. Rather, it will permit judges to reduce existing sentences consistent with the new rules if they think it appropriate in individual cases. The Justice Department claims that resolving these cases in court will be too time-consuming and is urging Congress to overrule the commission on retroactivity.  Barack Obama supports retroactivity; Hillary Clinton does not.

In a late 2000 interview, President Bill Clinton said "the disparities are unconscionable between crack and powdered cocaine." But his attorney general helped kill the commission's 1995 proposal to eliminate the crack-cocaine disparity.  In 2001, President-elect Bush said he believed that "the powder-cocaine and the crack-cocaine penalties [should be] the same. I don't believe we ought to be discriminatory." Yet his Justice Department not only opposed both of the commission's recent crack decisions but is seeking legislation preventing the new rules from applying retroactively in many cases.

If Mr. Bush still believed what he said in 2001, he could deal with retroactivity in a streamlined fashion by exercising his clemency power.  This would address the workload problem that troubles his Justice Department. More importantly, the president would make a dramatic statement about racial justice and perhaps goad a recalcitrant Congress into fixing the underlying racial inequity in federal drug penalties.

But any suggestion that presidents make use of their constitutional clemency power has become deeply suspect. The federal pardon and clemency power has fallen from grace. Critics believe pardons and commutations have become partisan tools cynically wielded to benefit primarily the rich and powerful. There is, however, another tradition of pardon and clemency: Presidents over American history have used this constitutional power to fix and publicly address occasional systematic injustices.

Some recent related posts:

• Mukasey's crack testimony and reactions from public policy groups
• Division in the Justice Department over crack retroactivity
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• How the media can do better: ask the candidates tough crime and punishment questions

The crack retroactivity story in my backyard

Another story about the implementation of the new federal crack guidelines can be found this morning in my home-town Columbus Dispatch.  Here are the highlights:

The number of crack-cocaine dealers and users who could be released early from federal prison has nearly doubled from initial estimates, local officials now say. 

Last year, the U.S. Sentencing Commission announced new, retroactive sentencing guidelines for the drug offenders that could mean early release for 224 federal inmates who were sentenced in the U.S. District Court for southern Ohio, which includes Columbus, Dayton and Cincinnati. Since then, a review of offenders' files pushed the number up to 439 inmates, federal public defender Steve Nolder said. And of those, 85 could be released in the next few weeks. "A lot of these people will get released pretty quickly," Nolder said....

Local U.S. attorneys are working with public defenders but aren't agreeing to release all those who are eligible, said William Hunt, first assistant U.S. attorney. "We're concerned in general about the danger to the community," he said.  The government is objecting to a release if a gun was used in the drug crime, if the offender has a lengthy criminal history or if he or she caused problems in prison, Hunt said.

On Friday, federal judges finalized new procedures so that those eligible can be freed when the sentencing changes go into effect March 3.  For example, judges determined that the cases will be reviewed in order of the inmates' release dates, said U.S. District Judge Edmund A. Sargus Jr.  Inmates who aren't scheduled to be released for a few years will have to wait a few months to hear if they could be affected. And all inmates will be placed on supervised release, he said. "They will be monitored, drug-tested and watched for new offenses," Sargus said.

Another story about the local implementation of the new crack guidelines

Today the local details of crack retroactivity come from this piece in the St. Louis Post-Dispatch, headlined "Crack cocaine inmates may gain early release." Here are snippets:

Convicted crack dealer John J. Betts got a break in his federal prison sentence Friday — one of seven men and women who had their sentences reduced in federal court in St. Louis under new guidelines aimed at reducing the punishment faced by crack cocaine defendants.... Betts' sentence was cut by 21 months Friday, but he will actually be freed only a month earlier than scheduled, as his release date had already been moved up for good behavior.

Friday's hearings in front of U.S. District Judge E. Richard Webber were the first in eastern Missouri, but judges also can handle the resentencings without a formal court hearing.  U.S. District Judge Catherine Perry resentenced three defendants on Wednesday, and U.S. District Judge Carol Jackson is believed to have been the first in Missouri or Illinois to order a resentencing when she signed paperwork last month. She was second only to federal judges in Oregon, said Doug Burris, chief federal probation officer in St. Louis, and acted because it meant immediate freedom from a halfway house for that inmate.  All inmates resentenced so far have been in halfway houses, and were put at the front of the line because a recalculation of their sentence could mean freedom and no one wants them to have to serve an extra day, Burris said....

The real effect on Betts, like many of the others, will be somewhat more modest, thanks to credit they earned while in prison for good behavior or attending treatment programs. The most anyone on Friday received was a year off, but officials said that others could get up to two years off their sentence.

More coverage of crack retroactivity realities

The Friday papers bring these two notable stories about the new retroactive crack guidelines.  From the Washingont Post here, "Crack Offenders Set for Release Mostly Nonviolent, Study Says":

Most of the more than 1,500 crack cocaine offenders who are immediately eligible to petition courts to be released from federal prisons under new guidelines issued by the U.S. Sentencing Commission are small-time dealers or addicts who are not career criminals and whose charges did not involve violence or firearms, according to a new analysis by the commission staff....

The figures are at odds with the characterization of the inmates by Attorney General Michael B. Mukasey, who would like Congress to pass legislation voiding the U.S. Sentencing Commission policy before it takes effect March 3.

From the Fresno Bee here, "Fresnan's cocaine sentence reduced: She'll be among first to benefit from new guidelines on crack":

Just two days short of her 23rd birthday, a sobbing Stacey Rena Candler was sentenced to 15 years in federal prison after what was then the largest crack cocaine bust in Fresno County history.  Now, more than 11 years later, Candler is scheduled to walk free, thanks to changes in federal sentencing guidelines that bring crack cocaine prison terms -- even ones already handed out -- more in line with those for powder cocaine.

This week, U.S. District Judge Anthony Ishii signed an order that reduced Candler's concurrent sentences -- for possession of and conspiracy to possess crack cocaine for distribution -- to the time she's already served.  Prosecutors agreed to the early release.  Candler is the first person sentenced on crack cocaine charges in Fresno's federal courthouse to have her sentence retroactively reduced, but she won't be the last.

I do not believe that the US Sentencing Commission has made the staff analysis referenced in the Washington Post article available to the public on its website, but I am hoping it will do so soon.

Some related posts:

• One federal district trying a single judge approach to crack retroactivity
• How crack retroactivity is being applied in Massachusetts
• Notable new resource for those working on crack resentencing
• Interesting crack retroactivity letters sent around to judges

Interesting crack retroactivity letters sent around to judges

Though all the details will surely get lost in the broader politics of the day, the little stories surrounding crack retroactivity continue to fascinate me.  And, thanks to a friend of the blog, I can post here two interesting new documents sent around to federal judges this week concerning the implementation of crack retroactivity. 

The first document is a letter with an order form from the Sentencing Commission and Criminal Law Committee intended to help courts implement crack retroactivity rulings. The second document forwards a letter from the Bureau of Prisons, which "request the courts' cooperation when resentencing crack cocaine offenders." This most notable part of the BOP letter is the request that judges "consider imposing a ten-day delay in the effective date of any resentence that results in the inmate's immediate release (e.g., 'time served')" in order to "allow the BOP to satisfy certain statutory requirements and work with the probation officer who will supervise the offender in the community."

Download ao_order_re_cocaine_base_reduction.pdf

Download bop_letter_re_crack_resentencings.pdf

How crack retroactivity is being applied in Massachusetts

This morning's Boston Globe has this new story, headlined "US shift may free up to 30 inmates: Judges here trim prison time for crack convictions," which reports on how the new crack guidelines are being applied in Massachusetts federal courts.  Herw are snippets:

Federal judges in Massachusetts have begun ordering the release of prisoners convicted of crack cocaine offenses, responding to a government decision to retroactively reduce the harsh penalties for using and selling that particular form of the drug. Up to 30 could be affected.

Since Feb. 6, judges have reduced by 15 to 33 months the sentences of at least three Massachusetts inmates imprisoned for crack offenses.  As a result, two who have already exceeded the shortened sentences will be freed March 3, the first day prisoners are eligible for lightened punishments for crack-related crimes. A third is expected to be released in June.

In one case, US District Judge William G. Young criticized the US Sentencing Commission for failing to implement the new sentencing structure right away when it voted on Dec. 11 to make the lessened penalties retroactive for some 19,500 federal prisoners nationwide. "The failure of the Commission immediately to implement its solution to the 'fundamental unfairness' in the way crack cocaine offenders were treated under the previous version of the guidelines . . . virtually guarantees that some defendants . . . will spend more time in prison than they should have," Young wrote Tuesday.

Miriam Conrad — head of the federal public defender agency in Boston, which represented the three defendants whose releases have been ordered - said her office has come up with a list of at least 27 other inmates who may be eligible for sentence reductions. "I'm getting letters from prisoners on a daily basis," she said.... Christina DiIorio-Sterling — a spokeswoman for US Attorney Michael J. Sullivan, whose office agreed to all three sentence reductions — said many factors will determine how prosecutors treat such applications. "In general, there will be some offenders for whom early release may be appropriate, given the reduction in sentencing as mandated by the changes in the guidelines," she said.

The opinion by Judge Young reference in this story can be accessed at this link.

One federal district trying a single judge approach to crack retroactivity

This new article in the Kansas City Star, headlined "Sentence corrections possible in crack cocaine cases," reveals that one federal district has adopted an interesting (and legally questionable?) approach to crack retroactivity matters:

Late last month, Chief U.S. District Judge Fernando Gaitan issued an order establishing the sentence-reduction procedure for western Missouri. Requests will be funneled to U.S. District Judge Ortrie Smith, who will make the final decisions after receiving input from a public defender, two prosecutors and several U.S. probation officers....

The [US Sentencing] Commission estimated last year that about 3,800 inmates nationwide could be released within a year after the decision takes effect March 3.  In western Missouri, about 60 inmates could be released in the first few years.

The sentence reductions are not automatic. A variety of factors, including public safety considerations, will play a role in whether an inmate qualifies, said Kevin Lyon, the chief probation officer in Kansas. Lyon said his office will notify Smith of any public safety questions that arose either at the offender’s initial arrest or since incarceration. Gregg Coonrod, an assistant U.S. attorney who is handling claims for the government, said his office also would watch for inmates who could present a problem on their release. “We’ll argue over the ones who are worth arguing over,” Coonrod said.

Notable new resource for those working on crack resentencing

The Center for Community Alternatives (CCA), which seeks to "promote reintegrative justice and a reduced reliance on incarceration through advocacy, services and public policy development," now has on its website an interesting new resource for federal defense attorneys.  This new document is titled "Entitled The Importance of an Individualized Assessment: Making the Most of Resentencing Under the Amended Crack Cocaine Guidelines," and it suggests resentencing strategies and issues.  The document covers a lot of federal sentencing ground, and here is how it revs up:

Combined, Gall, Kimbrough, and the Sentencing Commission’s decision provide a wonderful opportunity for those convicted of a federal crack cocaine offense to receive significant reductions in their sentences. But the Commission has sought, in several ways, to limit the sentence reductions available to individuals convicted of a crack cocaine offense.  A full understanding of the possibility available to such individuals, and the problems with the Commission’s attempted limitations, requires some discussion of Gall and Kimbrough.

Is crack reform to be subject to bargained justice?

The Washington Post has this intriguing little item suggesting a crack sentencing reform deal could be in the works:

Congress could limit the early release of crack cocaine offenders as part of a possible deal with the Bush administration to reduce a disparity in cocaine sentencing, a leading Democrat said yesterday.

Sen. Joseph R. Biden Jr. (Del.) said there is growing support in Congress for revising a 22-year-old law that sets far harsher federal penalties for crack cocaine than for powder cocaine.  A Justice Department willingness to reduce the disparities and revise a mandatory minimum sentence for crack possession makes a deal possible, Biden said. He said he could consider in return the Bush administration's plea to limit a pending release of crack offenders whose sentences were cut by the U.S. Sentencing Commission.

"I'm willing to consider a compromise [as long as] . . . there's a significant change relative to disparities, a significant change relative to minimum mandatory, and in return for that I'm willing to talk about a meaningful change in retroactivity," Biden said after a hearing of the Senate Judiciary subcommittee he chairs.

I would be very surprised if this kind of deal becomes a legislative reality anytime soon, but it is really interesting that this sort of deal-making is being openly discussed.

Some recent related posts:

• Gearing up for today's Senate crack hearing
• Report on Senate crack hearing

Report on Senate crack hearing

I was busy with other matters and thus was not able to watch the Senate crack hearing via webcast.  But, as detailed in this AP report, it appears that the hearing had its moments:

Senate Democrats on Tuesday rejected Attorney General Michael Mukasey's request to change new sentencing guidelines that would enable thousands of federal inmates to seek reductions in their crack cocaine sentences....  Senate Judiciary Committee Chairman Pat Leahy, D-Vt., accused Mukasey of falsely suggesting that the new policy would automatically set free 1,600 violent offenders "to prey on hapless communities."

"As the attorney general, himself a former federal judge, should have known ... no one can be released without a hearing before a federal judge who is obligated to evaluate each case and to consider factors such as the criminal history and violence," Leahy said in a statement.  "We can't let such scare tactics by the administration deter us from our goal of achieving fairness and legitimacy in the criminal justice system," said Sen. Edward Kennedy, D-Mass....

Testifying for the Justice Department, Gretchen C.F. Shappert, a federal prosecutor for the Western District of North Carolina, told the Senate panel Tuesday that the new sentencing rules of retroactivity would be too burdensome on the federal court system.  Further, the flood would hit certain court districts disproportionately, she said.

Everyone's written testimony from the hearing now appears to be linked on this official website.  A quick scan of the testimony did not reveal anything especially new in this old debate, but perhaps readers see some hidden nuggets in the latest round of wacky crack talk.

Crack debate becoming really whack really quickly

When the US Sentencing Commission decided in December to make its new crack guidelines retroactive effective March 3, 2008, I knew that the script was already in place for sentencing March Madness.  But with AG Michael Mukasey's recent congressional testimony urging Congress to block retroactivity for the new crack guidelines (basics here and here), crack wackiness has gotten a running start.  And there is no evidence that sanity is going to prevail anytime soon.  Indeed, news reports and upcoming events suggest that the crack story will only get more whack in the days and weeks ahead.

First, consider this interesting and troublesome news report from Buffalo, headlined ""Battle shapes up over crack sentences: Waivers may block bids for early release."  The article indicates that the local US Attorney may rely on appeal waivers in plea agreements to try to deny defendants who pled guilty the benefit of the new crack guidelines:

Crack dealers convicted in Western New York may face a legal fight from federal prosecutors if they apply for early releases from prison under new sentencing guidelines approved late last year....

U.S. Attorney Terrance P. Flynn may oppose requests to reduce the sentences of previously convicted people, based on a legal waiver that is routinely included in federal plea agreements filed in Buffalo and Rochester. Dating to at least 1997, hundreds of federal drug offenders in the region have agreed to the waiver, promising that they would never ask for reduced sentences — even if future changes in the law allowed them to do so. “At this point, we haven’t decided whether we will try to enforce the waiver,” said Assistant U.S. Attorney Joseph M. Guerra III, Flynn’s top aide for drug prosecutions. “We’ve talked about the situation with [Justice Department] officials in Washington, and we’re waiting for guidance or directives from them.” ....

At least eight men and one woman already have filed court papers in Buffalo or Rochester, asking for their crack sentences to be reduced, according to Guerra.... Most of the federal prosecutors throughout the country do not require offenders to sign the kind of waiver that is required locally, court officials said....

Of course, one of many ironies of prosecutors trying to use appeal waivers to block crack retroactivity would be that only folks who pled guilty and accepted responsibility would get stung by this policy.  Defendants who went to trial and lost don't have appeal waivers to worry about, but defendants who took accepted the government plea terms are now at risk of getting the courtroom door shut as a result of their decision to plead guilty.  I guess this could be an example, to tweak a great quote, of no good plea deal going unpunished.

Meanwhile, as detailed in this official notice, tomorrow brings a hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity" scheduled by the Senate Committee on the Judiciary before the Subcommittee on Crime and Drugs at 2:30 pm.   Here's the current witness list:

• John Richter, US Attorney on behalf of the Department of Justice
• District Judge Ricardo H. Hinojosa, Chair of the U.S. Sentencing Commission
• District Judge Reggie B. Waltonon behalf of Criminal Law Committee of the Federal Judicial Conference
• Nora Volkow, M.D., Director, National Institute on Drug Abuse, Department of Health & Human Services
• James Felman, Sentencing Committee of the Criminal Justice Section of the American Bar Association

I believe this hearing is supposed to be focused on possible legislative changes to the 100-1 crack/powder ratio that remains in place in federal statutory mandatory minimum provisions.  However, in light of AG Mukasey's call for legislation to block the retroactivity of the new crack guidelines, I would expect all sort of craziness coming from the star-studded group of Senators that sit on the Senate Judiciary Subcommittee on Crime and Drugs.