Wednesday, December 10, 2008

Tenth Circuit find Booker not applicable in crack retroactivity proceedings

A helpful reader reminded me today that I still haven't blogged about an important Tenth Circuit ruling concerning Booker's applicability to crack retroactivity proceedings that was handed down late last week.  (I can blame OJ and Plaxico for distracting me from more sober and arguably more important issues.)  The thoughtful panel decision in US v. Rhodes, No. 08-2111 (10th Cir. Dec. 5, 2008) (available here), cannot be easily summarized, but here are some key sections:

Although the parties and district court agreed that § 3582(c)(2) afforded the district court authority to modify Rhodes’ term of imprisonment, the parties and district court disagreed as to the extent of that authority. In particular, the government and district court concluded, over Rhodes’ objection, that the district court’s authority was circumscribed by § 1B1.10 of the Sentencing Guidelines.... Rhodes argues that, “because a hearing pursuant to § 3582(c)(2) is a new sentencing hearing, Bookeris applicable and the guidelines – including § 1B1.10 – must be considered advisory.”...

The remedial portion of Booker resolved the Sixth Amendment issue by excising § 3553(b)(1), which mandated that district courts, in conducting original sentencing proceedings, impose within-Guidelines sentences.  Importantly, however, Booker made no alteration to § 3582(c)(2), which, as noted, provides the statutory basis for sentence modification proceedings.... [T]he Sixth Amendment concerns that gave rise to the Booker decision will not be replicated in sentence modification proceedings.  Given the narrow scope of sentence modification proceedings, there is no concern that a district court in such a proceeding will make factual findings that in turn will raise a defendant’s sentence beyond the level justified by “the facts established by a plea of guilty or a jury verdict . . . .” Booker, 543 U.S. at 244.  Indeed, a district court in a sentence modification proceeding is authorized only to “reduce the [originally imposed] term of imprisonment,” 18 U.S.C. § 3582(c)(2), not to increase it.  As a result, we conclude that Booker simply has no bearing on sentencing modification proceedings conducted under § 3582(c)(2).

The Tenth Circuit panel in Rhodes recognizes that its holding is in conflict with the Ninth Circuit decision on this issue in the Hicks case:

The problem with the Hicks decision, in our view, is that it failed to consider that, as outlined above, sentence modification proceedings have a different statutory basis than original sentencing proceedings.  As a result, the Ninth Circuit erroneously concluded that the remedial portion of the Booker decision, which rendered the guidelines effectively advisory for purposes of original sentencing proceedings, applied to § 3582(c)(2) proceedings as well.

Ah, the sweet smell of a clean circuit split...

December 10, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Saturday, November 22, 2008

ACLU makes argument for right to counsel at crack retroactivity proceeding

Yesterday, I received a press release from the ACLU noting the filing of a notable brief in the Fifth Circuit.  Here are the basics:

The American Civil Liberties Union today filed its opening brief before the U.S. Fifth Circuit Court of Appeals in an effort to preserve the constitutional right to counsel for those seeking resentencing based on the recent reduction to the federal sentencing guideline range for crack-cocaine offenses.

“When an individual’s freedom hangs in the balance, fundamental fairness and the most basic of our constitutional protections demand that the right to counsel be honored,” said Adam Wolf, a staff attorney with the ACLU Drug Law Reform Project.  “Those unfairly sentenced under the initial, now infamous crack-cocaine guidelines must not face further injustice through the denial of necessary and deserved legal representation.”...

The ACLU’s brief argues that the denial of such a resentencing motion -- when new facts may be introduced that significantly impact the length of incarceration -- without granting the defendant access to legal counsel or an opportunity to review and respond to new evidence violates the Sixth Amendment’s right to counsel and the Fifth Amendment’s Due Process Clause, respectively....

The case, U.S. v. Ross, is on appeal from the U.S. District Court for the Northern District of Texas.  The ACLU’s brief may be found online at this link.

November 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Sunday, November 16, 2008

Ohio's experience implementing new crack guideline retroactivity

My local paper this morning had this effective little article about the implementation of the new reduced crack federal sentencing guidelines in the Southern District of Ohio.  Here are some particulars:

The federal probation office has determined that 256 crack-cocaine dealers in the Southern District of Ohio are probably eligible for early release from prison under a change in federal sentencing guidelines.... "That number is pretty close to being reliable. … We looked at well over 3,000 cases," said Pat Crowley, chief U.S. probation officer for the district.

The federal public defender's office had estimated that 439 inmates might be eligible. Federal prosecutors plan to object to early release in about 80 cases but agree with the probation office's assessment of the others, said William Hunt, first assistant U.S. attorney for the southern district....

The three agencies -- probation, public defender and prosecutor -- together reviewed 464 inmate files; in 80 percent of the cases, they agreed on whether an inmate was eligible and, if so, for how much of a reduction, Crowley said.

That bodes well for the inmates when they go before judges, said Steven Nolder, federal public defender for the southern district. The average sentence reduction is about 28 months, "which is right on target with the national average," Nolder said.

Hunt said the U.S. Department of Justice was not in favor of the guideline changes. But now that they are in place, he said, the department is objecting to early release for only the worst offenders.

Some related posts:

November 16, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Monday, November 03, 2008

The new USSC crack guidelines ... one year later

Maryland's legal newspaper today has this effective article, headlined "Crack cocaine sentences, one year later."  The piece reminds us that the US Sentencing Commission's new crack guidelines have now been in place for a full year, and it also provides a terrific look at how the retroactive application of these new guidelines has played out in one jurisdiction.

Some related posts:

November 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Thursday, October 30, 2008

Latest USSC data on crack retroactivity

The US Sentencing Commission has available here updated data on the retroactive application of its revised crack sentencing guidelines 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 report represents those cases considered by the courts through September 30, 2008 and for which data was received, coded, and edited by the Commission as of October 16, 2008.

I continue to be impressed and somewhat surprised by how few concerns have been expressed about the reality of applying the new crack guidelines retroactively given what a huge fuss was made by the Justice Department about the idea before it became a reality back in March.

October 30, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Friday, September 12, 2008

Eleventh Circuit faults district judge for failing to explain denial of crack reduction motion

A helpful reader altered me to a decision from the Eleventh Circuit which, though unpublished, is a significant story in the on-going effort to implement retroactively the new federal crack guidelines.  In US v. Johnson, No. 08-11415 (11th Cir. Sept. 12, 2008) (available here), the panel vacates and remands for further consideration when the district court failed to explain its denial of a sentence reduction.  Here is how the opinion starts and ends:

Sean Johnson, a federal prisoner convicted of a crack cocaine offense, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on an amendment to the Sentencing Guidelines that lowered the base offense levels applicable to crack cocaine.  The Government did not file a response to Johnson’s motion in the district court, and the district court’s order denying Johnson’s motion stated that it had “carefully reviewed said Motion and the entire court file” and was “otherwise fully advised in the premises.”  The district court did not otherwise explain its ruling.  Johnson asserts the district court abused its discretion because the basis for the denial cannot be clearly discerned, thus, effective appellate review is not possible....

The district court’s order denying Johnson’s motion stated that it had “carefully reviewed said Motion and the entire court file” and was “otherwise fully advised in the premises.”  The district court did not otherwise explain its ruling.  Accordingly, the record does not demonstrate the district court took the pertinent factors into account in denying Johnson’s motion.  Accordingly, we vacate the district court’s order denying Johnson’s motion for reduction of sentence and remand for further consideration and explanation.

September 12, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Thursday, September 11, 2008

Important and impressive Fifth Circuit ruling concerning crack retroactivity

A helpful reader alerted me to an important and impressive opinion concerning crack retroactivity issues from the Fifth Circuit, US v. Robinson, No. 08-10424 (5th Cir. Sept. 10, 2008) (available here).  Here is the reader's effective summary:

This opinion is by the Fifth Circuit regarding the right to an attorney in a crack retroactive amendment hearing. The defendant had been sentenced for a crack offense over a decade ago and applied for a reduction of his sentence under the retroactive amendment. In doing so, he also requested an attorney to represent him.  The government responded with a complex, 25-page sentencing memorandum.  The government contended, among other things, that the defendant was not entitled to an attorney and that he should receive no greater than a five-month reduction -- he could have received up to a 40-month reduction.  The next day, the district court issued a short order granting the defendant a five-month sentence reduction.  The defendant then appealed and again asked for an attorney. The sole question before this panel was whether the defendant should be appointed counsel to represent him on appeal. The court answers that question in the affirmative. In reaching that result, the court covers a lot of interesting ground.

September 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Friday, September 05, 2008

Major Eleventh Circuit ruling on reach of crack retroactivity

The Eleventh Circuit today in US v. Moore, No. 08-11230 (11th Cir. Sept. 5, 2008) (available here), has the first major circuit ruling about the reach of the retroactive crack guidelines.  Here is how the decision starts:

In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal separate district court decisions denying their motions for reduced sentences under 18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment 706 to the Sentencing Guidelines, which, together with Amendment 713, retroactively reduced the base offense levels applicable to crack cocaine offenses.  The district courts denied their motions on the ground that, because the defendants were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of lowering their applicable guideline ranges. We affirm.

September 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack

Friday, August 22, 2008

Big crack arguments before Eleventh Circuit

Thanks to law.com, we can now all read this effective article from the Fulton County Daily Report headlined "Crack Resentencing Controversy Comes Before 11th Circuit."  Here is how the piece starts:

Today, two of the most controversial issues in sentencing law -- the length of sentences for crack cocaine offenders and judges' ability to go outside the federal sentencing guidelines -- will intersect in arguments at a federal appeals court panel sitting in Atlanta.

The five cases from the Southern District of Florida, consolidated for oral argument at the 11th Circuit, have the potential to affect many other cases throughout Florida, Georgia and Alabama. The appellate chief at the U.S. Attorney's Office in Atlanta, Amy L. Weil, said she'd seen about a dozen motions by defendants in the Northern District of Georgia alone that raise the same issue.

In each case before the court today the defendant was convicted of a federal crack cocaine offense and sentenced before more lenient crack cocaine sentencing guidelines went into effect in November.  Each is trying to get a new sentence based on the change in the guidelines but has been stymied because prosecutors argue they were sentenced as career offenders.

August 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Saturday, August 16, 2008

Effective review of implementation of crack retroactivity

This local article, headlined "Virginia leads in crack sentence reductions," provides a terrific review of some of the latest realities in the retroactive application of the new federal crack guidelines.  Here are some excerpts from the article:

Virginia leads the nation in the number of prisoners who've had sentences reduced under new federal sentencing guidelines for crack cocaine, U.S. Sentencing Commission numbers show.

Federal judges in Virginia have lowered the sentences of at least 825 prisoners since the new rules took effect March 3 — with the average prisoner getting more than two years cut from a sentence, according to a recent report from the commission.  Judges have granted sentence reductions to 65 percent of the 1,271 federal prisoners in Virginia whose applications were acted upon by July 22.  The numbers don't show how many have been released from prison....

Eastern Virginia — where crack-cocaine arrests were numerous throughout the 1990s, particularly with an anti-gun initiative called Project Exile and other efforts — is the nationwide region most affected by the new guidelines.... The change applies only to crack convictions in federal courts, not state courts.  Under Virginia's sentencing guidelines, crack offenses are treated equally with those for powdered cocaine.

Each case, typically filed by a defense attorney or the defendant, is looked at by prosecutors before judges make a ruling on a reduction.  Before the new guidelines took effect, there was a concern that the crack-sentencing reductions would take too much time from prosecutors' other cases.  That was a big reason the Bush administration opposed applying the new guidelines retroactively to people in prison.

But Deanna Warren, a spokeswoman with the U.S. attorney's Norfolk office, said it hadn't been a problem.  The work is divvied out to prosecutors on a rotating basis. Judges, too, she said, have efficiently pushed cases through. "I think our system has worked," she said. "It's been very smooth, once we got the system down. The court has done a great job. Everybody has done their fair share."...

The average successful applicant in the Eastern District has seen prison time reduced by 29 months, or nearly 2 1/2 years.  That's a 18 percent cut from the average 13-year sentence.

So it seems that the "sky-will-fall" chicken-little-type concerns, which were expressed by AG Mukasey and other DOJ folks in an effort to prevent the new crack guidelines from being retroactive, were overblown.  I am not surprised, and I am pleased to see prosecutors now admitting that they have been able to do better backward-looking justice without being too concerned with how much time retroactive justice is taking away from future prosecutions.

Some recent related posts:

August 16, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (7) | TrackBack

Friday, July 18, 2008

Catching up with beneficiaries of crack retroactivity

The Boston Globe has this notable new piece headlined "Inequity's end means new start for 31: Crack offenders from Mass. see US sentences trimmed." Here are snippets:

In December, the Sentencing Commission reduced the sentencing range for certain crack offenses by two levels. For example, it lowered the maximum recommended sentence for selling 5 grams of cocaine from 78 months to 63 months.

Judges in Massachusetts have responded swiftly.  By July 8, judges had trimmed the sentences of 79 of 109 inmates, including those who were freed, according to Chief US District Judge Mark L. Wolf.  Some freed prisoners have been detained elsewhere for other legal proceedings, including deportation if they are not US citizens.

The commission had estimated that 25 prisoners from Massachusetts would be eligible for release by November and that a total of 91 prisoners could be freed through 2012. Nationwide, the commission has estimated that about 20,500 will eventually be freed early.

US Attorney General Michael B. Mukasey had opposed making the new guidelines retroactive, saying it could send violent criminals back to the streets en masse. But Wolf said the revised guidelines have safeguards.  Judges consult prosecutors, defense lawyers, probation officers, and others about the conduct of imprisoned inmates and strive not to release anyone who might pose a danger, he said.  Those sentenced as career offenders are ineligible.  Prosecutors have agreed to most of the 79 shortened sentences, Wolf added.

US Attorney Michael J. Sullivan said that if defendants meet eligibility requirements and are not a danger to the community, prosecutors should not object.  Lieutenant Jeffrey P. Silva — a spokesman for the New Bedford police, who have made numerous crack cocaine arrests — said he does not worry that crime will rise as a result of the releases.  But he minimized the significance of the sentence disparities, saying, "I don't feel there's anybody who got arrested for crack cocaine who was a pillar of the community."

A report released by the commission last month, based on partial data, indicated that defendants whose sentences were shortened in Massachusetts had originally been sentenced to an average of nine years in prison and that their sentences were cut to about 7 1/2 years.

Some recent related posts:

July 18, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Wednesday, July 02, 2008

FSR issue focused on crack retroactivity now on-line

I am pleased to report that, just in time for the start of the summer sentencing dog days, the latest issue of the Federal Sentencing Reporter focused on white-collar cases is now available here on-line.  The issue is titled "Debates and Realities Surrounding Crack Retroactivity," and here is an overview of some of the contents:

EDITOR's OBSERVATIONS

ARTICLES

PRIMARY MATERIALS

Details on other recent FSR issues:

July 2, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Wednesday, June 25, 2008

Latest USSC data on crack retroactivity

I see that the US Sentencing Commission has available here updated 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 June 12, 2008.

June 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Wednesday, June 04, 2008

New crack guidelines means Willie Mays Aikens gets to go home

514x00144_9aikensfile3standaloneprod As detailed in this article from the Kansas City Star, "former Royals standout Willie Mays Aikens is scheduled to be released from federal prison today, and he could be at a Kansas City halfway house as early as this evening."  Here are more details from the article (which has more than a few legal errors):

Aikens, prisoner 01732-031 at the federal correctional institution in Jesup, Ga., was sentenced to more than 20 years for crack cocaine distribution, bribery and gun charges under mandatory sentencing guidelines in 1994....

Three months ago, Congress approved new guidelines and made them retroactive — making Aikens one of about 20,000 inmates eligible for early release. Laine Cardarella, a federal public defender, presented Aikens’ case in federal court last month and argued successfully to end his prison sentence with time served.

104x00116_9aikens_file2standalonepro Aikens, 53, said he has lost 80 pounds in prison, and is close to his playing weight of 220 pounds. “There’s no doubt I’m in better health,” he said. “I’m in a better frame of mind. I have a spiritual life now that I didn’t have before. I just look forward to being able to get out of prison and go out with those things and be able to live my life like I’m supposed to live it.”

Aikens is scheduled to undergo counseling and spend 90 to 120 days at the halfway house in Kansas City before his full release. After that, he’s expected to return to his hometown of Seneca, S.C., to be with friends and family....

In March 1994, Aikens was arrested at his Kansas City home and charged with selling crack cocaine to an undercover police officer. He was later indicted on four counts of selling crack and was sentenced in December to the maximum sentence of 15 years, eight months. The judge also imposed a consecutive five-year term because Aikens allegedly had a loaded gun in the room where he sold the crack.

While in federal prison in Atlanta, Aikens wrote President Clinton for a pardon, but that request was never answered. Aikens has indicated he would like to find a job in baseball when he’s fully free, and would be willing to do speaking engagements, coaching, scouting, “whatever position that they have open for me and what they want me to do.” 

June 4, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Monday, June 02, 2008

Long feature on crack sentencing reform

The Washington Post magazine had this long cover story, headlined "Cracking Open," reviewing one man's notable experience with the ups and downs of federal crack sentencing terms.  The article's subheading captures its themes: "Michael Short knows he was wrong to sell crack cocaine, but he questions whether he needed 15 years in prison to learn his lesson.  Now some of the politicians who helped put him there are wondering, too."

June 2, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Tuesday, May 20, 2008

Will Willie Mays Aikens be freed as a result of the new crack guidelines?

Articles in the Kansas City Star and the The State indicate that a renown baseball player may be about to benefit from the new federal crack guidelines.  Here are the basics of this sporting story:

New sentencing guidelines might earn Willie Mays Aikens an early release from prison.  The former Seneca High and S.C. State baseball standout, who found fame and fortune with the Kansas City Royals before losing it all to drugs, could be ordered set free as soon as today.

His fate is in the hands of Laine Cardarella, a federal public defender who filed a stipulation and waiver agreement in Aikens’ name Monday in the Western District Court of Missouri. “We’re hoping he’ll be home soon,” Cardarella said. 

In 1994, Aikens was sentenced to 20 years, eight months after being convicted on federal drug and firearms charges....  Since his conviction, those opposed to mandatory sentencing have considered Aikens’ situation a classic case of cruel and unusual punishment.

Before the guidelines were created, the amount of crack in Aikens’ possession (64 grams) would have amounted to a sentence of little more than two years with the possibility of parole. His appeals were denied, and two attempts at gaining a presidential pardon were declined by Bill Clinton and George W. Bush.

On March 3, new crack sentencing guidelines were approved by Congress and made retroactive, affecting Aikens’ sentence. Cardarella, who is filing similar paperwork for 360 people, said about 70 percent of her defendants have had their sentences reduced. Cardarella and Aikens’ lawyer Margaret Love believe he will be released because he has served nearly 14 years.  Sentence reductions have ranged from 22 months to seven years.

May 20, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Wednesday, April 23, 2008

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."

April 23, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Tuesday, April 22, 2008

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."

April 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (7) | TrackBack

Thursday, April 17, 2008

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.

April 17, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (15) | TrackBack

Wednesday, April 09, 2008

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:

April 9, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Sunday, April 06, 2008

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:

April 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Saturday, April 05, 2008

"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!!

April 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Thursday, April 03, 2008

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.

April 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Tuesday, March 25, 2008

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.

March 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Thursday, March 20, 2008

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.

March 20, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (30) | TrackBack

Tuesday, March 11, 2008

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:

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.

March 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (3) | TrackBack

Thursday, March 06, 2008

This morning's crack sentencing coverage

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

March 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Wednesday, March 05, 2008

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:

March 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (8) | TrackBack

Tuesday, March 04, 2008

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:

March 4, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Monday, March 03, 2008

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

LOCAL REALITIES

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.

March 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack

Saturday, March 01, 2008

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.

March 1, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Tuesday, February 26, 2008

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:

February 26, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Monday, February 25, 2008

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:

February 25, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Sunday, February 24, 2008

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.

February 24, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Saturday, February 23, 2008

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.

February 23, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Friday, February 22, 2008

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:

February 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (6) | TrackBack

Thursday, February 21, 2008

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

February 21, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

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.

February 21, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Tuesday, February 19, 2008

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.

February 19, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Friday, February 15, 2008

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.

February 15, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Wednesday, February 13, 2008

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:

February 13, 2008 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, February 12, 2008

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.

February 12, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Monday, February 11, 2008

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:

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.

February 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (5) | TrackBack

Saturday, February 09, 2008

NY Times and NAACP speak out against the AG on crack retroactivity

AG Michael Mukasey's recent congressional testimony urging Congress to block retroactivity for the new crack guidelines (basics here and here) has now brought this new editorial from the New York Times and this new press release from the NAACP.  Here are excerpts:

From the NY Times:

Attorney General Michael Mukasey tried to scare the House Judiciary Committee on Thursday into blocking a responsible plan by the United States Sentencing Commission to address the gross disparity in penalties for possession or sale of crack cocaine and those for powder cocaine offenses. His alarm is unwarranted.... Instead of brandishing overblown fears to try to defeat a limited reform, Mr. Mukasey should be working with Congress to finally end the damaging 100-to-1 rule.

From the NAACP:

The NAACP was both saddened and offended by Attorney General Michael Mukasey’s call for Congress to override the decision by the U.S. Sentencing Commission to apply their May 2007 decision to reduce the recommended mandatory minimum sentencing range for conviction of possession of crack cocaine retroactive to those already in prison. “Attorney General Mukasey’s characterization of people currently in prison for crack cocaine convictions, and of the impact that a potential reduction in their sentences could have on our communities, is not only inaccurate and disingenuous, but it is alarmist and plays on the worst fears and stereotypes many Americans had of crack cocaine users in the 1980s,” said NAACP Washington Bureau Director Hilary O. Shelton.

“The fact that a federal judge will be called to review every case individually and take into account if there were other factors involved in the conviction, whether it be the use of a gun, violence, death or the defendant’s criminal history before determining if the retroactivity can apply, appears to have eluded the Attorney General,” Shelton added. “Furthermore, because more than 82 percent of those currently in prison for federal crack cocaine convictions are African Americans and 96 percent are racial or ethnic minorities, the NAACP is deeply concerned at the Attorney General’s callous characterization that many of the people in question are ‘violent gang members’.”

February 9, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (15) | TrackBack

Friday, February 08, 2008

Federal Defenders memo about DOJ position on crack retroactivity

I just got a copy of an interesting little memo from the Sentencing Resource Counsel of the Federal Public and Community Defenders, which clearly was written to respond to concerns within the defense bar as a result of the recent testimony of AG Mukasey urging Congress to block the retroactive implementation of the new crack guidelines.  Here is how the memo (which can be downloaded below) starts and ends:

Many of you have expressed concern over the Attorney General’s public declaration of the Department of Justice’s intention to propose new legislation to repeal the crack retroactivity decisions of Congress and the Sentencing Commission. The Attorney General’s proposed legislation would eliminate an available mechanism for a sentence reduction based on the Sentencing Commission’s careful findings that guideline ranges for crack defendants are greater than necessary to accomplish the goals of sentencing and have a racially disparate impact. Congress approved the Commission’s partial remedy for these urgent and compelling problems, and for the same reasons, the Sentencing Commission unanimously found that retroactivity is appropriate.

We believe that Congress is most unlikely to pass any such legislation for a variety of reasons....

While we do not believe that Congress will fall for the Department's announced intent to push legislation that would undo overdue and partial relief for some prisoners who suffer unfair sentences for crack offenses, we are prepared to mount constitutional challenges in the event that our optimism is not warranted. A legal memorandum on these issues has been prepared and is available upon request should the need arise.

Download memo_to_defenders_re_doj_proposal.doc

Some recent related posts:

February 8, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (3) | TrackBack

Division in the Justice Department over crack retroactivity

Writing this strong piece in the Los Angeles Times, Richard Schmitt is focused on the really interesting set of issues in the wake of AG Michael Mukasey's recent crack advocacy.  Here are extended excerpts:

In recent days, Atty. Gen. Michael B. Mukasey has voiced opposition to the early release of hundreds of federal inmates convicted of dealing crack cocaine, saying the move would unleash a potential crime wave in communities across the country.  He reiterated his concern Thursday at a hearing before the House Judiciary Committee.

But some U.S. attorney offices around the country may not be getting the message. In at least three cases, federal prosecutors have supported efforts to win inmates reduced sentences.  Two of the cases are in the Portland, Ore., area, where one inmate is thought to have been released.  A third defendant, jailed in Massachusetts, could be released this summer.  The disconnect between Justice Department policy and how new sentencing guidelines are being applied in some cases suggests the issue may be more complex than the attorney general has indicated....

Peter A. Carr, a Justice Department spokesman, said Thursday that there should be no confusion about where the department stands. "The department's policy on retroactivity is laid out in the attorney general's statement before Congress," he said.  But even some Justice Department officials see little chance that the Democratic Congress would approve such legislation. Opponents say the move would be unfair to defendants who have already served long sentences. 

Justice Department officials signaled at a conference on the new guidelines last month that they would do their part to implement the rules fairly -- a view that appears to contrast with the hard line that Mukasey has recently adopted. Some U.S. attorneys outside the Beltway are already helping implement the rules.  In Portland, the U.S. attorney's office supported reduced sentences for defendants in two cases, even before the guidelines were set to go into effect.  Kent Robinson, first assistant U.S. attorney in Portland, said the office backed the early release in one case because the defendant was already living in a halfway house....

The other Oregon defendant, Octabian Jamar Riley, was sent to prison in 2004 for selling crack and carrying a .45-caliber handgun. On the surface, he seemed to be just the sort of armed criminal that Mukasey was concerned about. But Riley won't be hitting the streets any time soon. Robinson said federal officials had turned over Riley to the state of Oregon to face separate charges.  Robinson said that it was an oversight to process the claims before March 3, and that he was unaware at the time that the Justice Department had a policy against it. "We mistakenly let those slip through before the national policy to oppose release [before March 3] was clear to us," he said. "Both represented rather extraordinary circumstances," he added. He said the office was now opposing any early release requests until at least March 3.

On Wednesday, a federal judge in Boston shaved 15 months off the sentence of another convicted crack dealer, court records show. The defendant, Deborah Woodard, had originally been convicted of possessing more than 50 grams of crack with intent to distribute, and was sentenced to 135 months in federal prison.  The decision by U.S. District Judge William G. Young to trim her sentence followed a request last month by Woodard's public defender.  After receiving the request, Young asked the government for its view on giving Woodard a break. The U.S. attorney's office in Boston responded by joining in the request, court records show. "My understanding is that the attorney general's concerns became known after the motion was filed, and our response was due," said Christina Dilorio-Sterling, a spokeswoman for the U.S. attorney's office in Boston.  Woodard could be eligible for release in June.

February 8, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (7) | TrackBack

Thursday, February 07, 2008

Mukasey's crack testimony and reactions from public policy groups

AG Mukasey's take on crack retroactivity appears in the last few pages of this written testimony submitted today to the House Judiciary Committee, which this morning held an "Oversight Hearing of the Department of Justice."  Here is the key concluding paragraph of the crack part of his testimony:

[W]e think it is imperative for Congress to pass legislation to address the Sentencing Commission’s decision.  In calling for action, I emphasize that we are not asking this Committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, non-violent offenders. Instead, our objective is to address the Sentencing Commission’s decision in a way that protects public safety and addresses the adverse judicial and administrative consequences that will result from retroactive application of these lower guidelines.  We would appreciate the opportunity to work with this Committee and this House to address the retroactivity issue in an expedient manner while beginning discussions on changes to the current statutory differential between crack and powder cocaine offenses.

Unsurprisingly, public policy groups like FAMM and the ACLU are not impressed and they've got press releases out responding to the AG's assertions.  The FAMM release is here, and the ACLU release is here.

Some recent related posts:

February 7, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

More on Mukasey on crack: is the best defense is a good offense?

This Washington Post article has a bit more information about AG Mukasey's latest statements about implementation of the US Sentencing Commission's crack retroactivity decision.  Here are excerpts:

In a statement prepared for his scheduled appearance before the House Judiciary Committee today, Attorney General Michael B. Mukasey said that unless Congress acts, "1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide" under a decision by the U.S. Sentencing Commission.  "Retroactive application of these new lower guidelines will pose significant public safety risks . . ." Mukasey said in the statement. "Many of these offenders are among the most serious and violent offenders in the federal system and their early release . . . would produce tragic, but predictable results." ...

Supporters of the commission's action say the fears raised by Mukasey are overblown. They note that inmates would have their petitions to be released heard by judges who would consider filings from prosecutors and probation officers before determining an offender's fitness to reenter society.

"I'm really kind of shocked that Attorney General Mukasey would seemingly not have faith in the American judicial system to do all it can to ensure that violent offenders are not released early and to address a fundamental injustice in the criminal justice process," said U.S. District Judge Reggie B. Walton, who presides in the District. "His position presupposes that judges will be irresponsible in exercising their discretion."

The federal judiciary supported the Sentencing Commission, citing the law's harsh impact on first offenders.  It was joined by federal public defenders, probation officers and activists.  Mukasey seemed to factor the criticism into his statement. "In calling for action, I emphasize that we are not asking this committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, non-violent offenders."

I find it notable and telling that these statements is that they arise in testimony submitted to the House Judiciary Committee, which later this morning is conducting an "Oversight Hearing of the Department of Justice."  Notably, as detailed in this press release and this official letter, the Chair of this House Committee is on record demanding from Mukasey "answers to questions about the politicization of the Department of Justice, waterboarding, the destruction of CIA tapes, and vote suppression."  Perhaps AG Mukasey shrewdly believes that, rather than try to defend his Justice Department on all these fronts, he can and should go on the crack attack in the hope of distracting attention from other issues. 

Indeed, against the backdrop of all the recent waterboarding news and the pardon attorney office scandal, I suppose I am not surprised that AG Mukasey would like to make headlines by beating up on judges, the Sentencing Commission and recent efforts to achieve greater sentencing fairness in federal drug sentencing.  I am surprised, however, that I am starting to really miss former AG Alberto Gonzales, who actually tended to be a bit more cautious and nuanced in his rhetoric about sentencing reform efforts and the work of federal judges and the US Sentencing Commission.

February 7, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (11) | TrackBack

Wednesday, February 06, 2008

AG Mukasey comes out swinging on crack retroactivity

This ABCNews story and this AP piece both report that Attorney General Michael Mukasey is going to ask Congress to intervene with the retroactive implementation of the new crack guidelines.  Here are a few particulars from a big new story on the crack sentencing front:

The Justice Department is expected to ask Congress to pass legislation to keep certain crack offenders behind bars until they take part in educational, rehabilitation and prisoner re-entry programs, even though a recent change in sentencing regulations makes them eligible for early release....

In testimony he's expected to give before Congress Thursday, Attorney General Michael Mukasey will claim that the sentencing guideline changes will lead to more than 1,500 violent crack cocaine dealers to be released immediately. "Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide," Mukasey said in a prepared statement that was sent to the House Judiciary Committee on Wednesday.... 

Mukasey will be testifying before the House Judiciary Committee, whose ranking member, Rep. Lamar Smith, R-Tex., has introduced legislation to halt the retroactive release. "Many of these criminals are dangerous repeat offenders who possessed firearms during their crimes," Rep. Smith said in introducing the measure. A senior Justice Department official described the measure as uncompromising on Wednesday. "The Lamar Smith bill is a straight-up bill opposing retroactivity," the official said....

With less than 30 days to pass legislation before the first offenders are eligible for release, it is unclear how quickly Congress will move.

As I have noted in prior posts (some of which are linked below), it seems very unlikely that Congress will, at this late date, have the time or inclination to do much about the unanimous crack retroactivity decision coming from the US Sentencing Commission back in December.  Nevertheless, the AG's testimony can (and should) turn this into an interesting political issue, especially because now all three serious presidential candidates are members of Congress.

Some related posts:

February 6, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Saturday, January 19, 2008

Fascinating (and first?) crack retroactivity opinion from SDNY

Thanks to this post from Harlan Protass at the Second Circuit Sentencing Blog, it appears that SDNY District Judge Gerard Lynch earlier this week became the first judge to issue an opinion report revisiting a crack sentence based on Kimbrough and the new retroactive crack guidelines.  Here are snippets of Harlan's effective write-up of the ruling (which goes by United States v. Polanco, No. 02 cr. 442-02 (GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008)):

While the proposed new sentence will not go into effect until the date of retroactivity, Judge Lynch has already said what he intends the new sentence to be: 70 instead of 87 months. He based it on three findings: (1) the Supreme Court's finding that the Guidelines are no longer mandatory but are only advisory; (2) the Supreme Court's finding that a "sentencing court may take into account its view that the penalties for crack are excessive in relation to those for other similar drugs"; and (3) the Sentencing Commission new and retroactively applied crack guidelines. 

The opinion in Polanco seems to have been issued sua sponte, and it ends with these interesting sentiments and instructions:

The Sentencing Commission has purported to limit the sentencing court's authority to reduce a sentence, emphasizing that, in its view, the reduction authorized by § 3582(c)(2) and the Commission's policy statement "do not constitute a full resentencing of the defendant," and prohibiting a reduction to a sentence "that is less than the minimum of the amended guideline range."  The effectiveness of these limitations is yet to be tested; it would be, to say no more, ironic if the relief available to a defendant who received a sentence that is now recognized to have been unconstitutional because imposed under mandatory guidelines based on non-jury fact findings and unwise because the guideline under which he was sentenced was excessively severe, can be limited by a still-mandatory guideline.

It is not likely, however, that the complex legal issues theoretically presented by the Commission's effort to extend limited relief to inmates in Polanco's situation will be tested in his case. The Commission has notified this Court that Polanco remains incarcerated, and that if his sentence is reduced as authorized by § 3582(c)(2) and the amendment to the crack guidelines, he may well be eligible for release within a matter of weeks following the March 3, 2008, effective date of the retroactivity policy. If this is so, there would be little need to explore the legality of any relief beyond that expressly authorized by the Commission's policy statement; the only question is whether the Court should grant the relief thus authorized.

Although the Court's authority to reduce Polanco's sentence does not become effective until March 3, 2008, it is not too soon for the Court to prepare to exercise that authority if appropriate, given that the sentencing transcript suggests that Polanco is a likely candidate for such a reduction, and that according to the Sentencing Commission's estimate, reduction of Polanco's sentence to 70 months might result in an expected release date of March 17, 2008.  Despite Polanco's apparent eligibility for the maximum authorized reduction, it would not be appropriate for the Court to reduce a defendant's term of imprisonment sua sponte without giving the Government an opportunity to address the issue. Perhaps events since Polanco's sentencing, including but not limited to actions while incarcerated that might show him to be dangerous and not rehabilitated, or information not presented to the Court at sentencing, will indicate that a reduction in sentence would not be appropriate.  Similarly, Polanco himself should have the opportunity to rebut any argument made by the Government, or to submit any information of his own supporting a reduction in his sentence.

Accordingly, the Court hereby serves notice of its intention to reduce defendant Polanco's term of imprisonment to 70 months on March 3, 2008, unless good cause not to do so is shown by the Government before that time, and it is hereby ORDERED that the Government submit any opposition to such a reduction on or before February 11, 2008. Polanco may submit a response to any Government submission on or before February 25, 2008.  In view of the potential urgency of the situation, these deadlines will not be extended.

It will be especially interesting to see if the Government submits any opposition and what its filing, if there is one, will say about broader retroactivity issues.  Whatever the government might say, Judge Lynch's work here confirm my sense that some serious crack March Madness is in the works for the federal courts.

January 19, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack