Sentencing Law and Policy

First Circuit thoughtfully talks through inapplicability of new FSA minimums on appeal

The First Circuit has a thoughtful discussion of its view that the new mandatory minimums of the Fair Sentencing Act are inapplicable to cases sentenced before the FSA became law and now on direct appeal. The ruling in US v. Goncalves, No. 10-1367 (1st Cir. April 29, 2011) (available here), includes these passages (with indicated emphasis in the original):

There is assuredly a policy reason favoring Goncalves' requested result: Congress did think that the superseded law was too harsh, so that it will be too harsh for Goncalves just as much as for those who committed the same offense after the FSA went into effect. Indeed, Goncalves suggests that the discrepancy is itself unconstitutional under equal protection principles; but discrepancies among persons who committed similar crimes are inescapable whenever Congress raises or lowers the penalties for an offense. Most often, the dividing line is the date of the crime....

In legal terms, the FSA is clearly inapplicable to this case; in human terms, the result is much less attractive but that is because the savings statute treats all such penalty reductions generically, and Congress did not expressly make the FSA an exception here.  It could easily have done so; indeed, it remains free to do so now.  More broadly, it could sensibly amend section 109 so that reductions in penalties for a pre-existing crime presumptively applied upon the enactment (or effective date) of the statute to anyone not yet sentenced or otherwise still on direct appeal.

Among other important points, the opinion includes this important footnote concerning what the panel describes as a "distinct" FSA pipeline issue:

At least one district court has held that provisions of the FSA, coupled with later amendments by the Sentencing Commission, do make the FSA's adjustments -- including a lessening of mandatory minimums -- applicable to defendants sentenced after the amendments became effective.  United States v. Douglas, 746 F. Supp. 2d 220 (D. Me. 2010) (now pending in this circuit).  Nothing in this decision is intended to resolve the distinct issues in that appeal.

Justice Department, six months later, responds to Senators' inquiry about handling FSA pipeline cases

Thanks to a very helpful reader, I have gotten a copy (and provide for downloading below) of a response from the Justice Department to the letter, dated November 17, 2010, from Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder (blogged here) which urged the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment."  

The response says little more than what the DOJ lawyers have been saying in courts around the country, namely that the Fair Sentencing Act's silence about implementation dates means that the general Savings Statute entails that only conduct after the effective date of the FSA gets the benefit of the new mandatory minimums.  Nevertheless, the letter is an interesting read, especially because it includes as attachments the internal memos sent from Main Justice to all prosecutors about how they should respond to the enactment of the FSA in August 2010 and to the promulgation of revised crack guidelines in November 2011.

Download FSA_Holder_letter_response_042511

Some posts on this FSA issue:

• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Notable new letter to AG Eric Holder concerning application of the FSA
• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• Federal sentencing litigation at its absolute finest
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Second Circuit demands application of old 100-1 crack mandatories ... with laments
• Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes

NY Times editorial about crack sentence debates after FSA

This morning's New York Times includes this editorial concerning federal crack sentencing headlined "Multiple Inequities."  Here are excerpts:

Congress moderated, but unfortunately didn’t eliminate, that disparity last year by passing the Fair Sentencing Act of 2010, reducing the ratio to 18 to 1.  For anyone, that is, who committed a crack offense after the law went into effect last August.  For those who committed crack-related crimes before then but have yet to be sentenced, it doesn’t. They are subject to the old mandatory minimum sentences — 5 years for 5 grams, 10 years for 50 grams.

As Adam Liptak reported in The Times, federal judges have expressed outrage about being forced to impose the harsher treatment with no discretion.  While courts decide if the new law can be applied retroactively, the Justice Department has the discretion to do something now, building on a policy Attorney General Eric Holder Jr. began last May.

He called for the “reasoned exercise of prosecutorial discretion,” authorizing a tough but flexible approach.  He asked prosecutors to take into account the kind of gross unfairness that results from applying the Fair Sentencing Act to someone who committed a crack offense in August 2010 but not to someone who did so the month before.

By statute, judges must give the mandatory minimum sentences to offenders subject to the old law.  Even under the old law, however, prosecutors have considerable discretion. Through plea bargaining, they can also ask for sentences of five years rather than 10.  If they decide not to prosecute in federal court, they can let a state prosecute with more flexibility in sentencing.

An interesting pro-Reagan spin on crack-powder federal sentencing reform

The Heritage Foundation blog has this very interesting new post about federal crack-powder sentencing reform which is headlined "Vindicating Reagan’s Drug Policy … 25 Years Later."  Here are excerpts:

Two weeks ago, the U.S. Sentencing Commission promulgated a permanent amendment to the Federal Sentencing Guidelines that reduces jail time for those convicted of offenses related to crack cocaine.  Liberals would love to portray the new drug sentencing standard for crack cocaine as a success story, in which the Obama administration undid a draconian Reagan-era drug policy.  Critics are unduly harsh on Ronald Reagan’s drug policy, blaming the Great Communicator for driving the hysteria in the 1980s which led to the enactment of unfair criminal drug laws.

However, liberals might want to avoid taking credit for “fairer” crack cocaine sentencing laws when President Obama signed the Fair Sentencing Act of 2010.  A look back twenty-five years ago reveals it was not President Reagan behind the gross disparities in sentencing of cocaine traffickers but in fact the liberals who created the problem in the first place.

In 1986,...[the] person responsible for the crack-powder cocaine ratio contained within the Anti-Drug Abuse Act of 1986 was Vice President Joe Biden.  Then-Senator Biden succumbed to what he later referred to as “a feeling of desperation” and proposed a 100-to-1 ratio.  His Democratic colleague from Florida, Senator Lawton Chiles, went even farther, by suggesting a 1000-to-1 ratio.  The 100-to-1 ratio ultimately became law and served as the basis for the November 1, 1987 sentencing guidelines.  By contrast, the Reagan administration proposed a much more reasonable 20-to-1 crack-powder ratio.

As a result of adopting Senator Biden’s ratio, defendants convicted of trafficking 50 grams of crack cocaine received a mandatory minimum sentence of 10 years, the same sentence given to someone who for trafficking in 5,000 grams of powder cocaine. Confronted with this disparity, the Sentencing Commission proposed reductions to the ratio in 1995, 1997, 2002 and 2007.  Each of these recommendations was unsuccessful because Congress refused to make a change.

Twenty years after his proposal became law, Biden backtracked, admitting that the facts that informed Congress’s determination “have proved to be wrong, making the underlying cocaine sentence structure we created unfounded and unfair.”  He also said, “Each of the myths upon which we based the sentencing disparity has since been dispelled or altered.”

The amendment to the guidelines that was promulgated last week raised the quantities of crack cocaine to trigger mandatory minimum terms from 5 to 28 grams for five-year sentences and from 50 to 280 grams for ten-year sentences.  Thus, the Fair Sentencing Act of 2010 reduced the ration to 18-to-1.  After multiple attempts by the Sentencing Commission to undo Biden’s proposal and years where crack and powder cocaine traffickers were sentenced in vastly different ways, a proportion akin to Reagan’s policy was established.

On August 3, 2010, President Obama signed the Fair Sentencing Act in the Oval Office.  He made no remarks at the signing.  What President Obama probably should have said was that twenty-five years of a vast disparity in drug sentencing could have been avoided if Congress only listened to Reagan.

NYT Sidebar column discusses crack sentencing in FSA pipeline cases

Now available on line here is the latest New York Times Sidebar column by Adam Liptak, which this week is focused on the debates over application on the new Fair Sentencing Act.  Here are excerpts:

The federal judiciary is in something like open rebellion over a new law addressing the sentences to be meted out to people convicted of selling crack cocaine.  A couple of weeks ago, for instance, a judge in Massachusetts said he found it “unendurable” to have to impose sentences that are “both unjust and racist.”

The new law, the Fair Sentencing Act of 2010, narrowed the vast gap between penalties for crimes involving crack and powder cocaine, a development many judges welcomed.  But it turns out that the law may have been misnamed. “The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive,” a federal appeals court judge in Chicago wrote last month.

The problem is that the law seems to reduce sentences only for offenses committed after it went into effect in August.  The usual rule is that laws do not apply retroactively unless Congress says so, and here Congress said nothing.  That seems to mean that hundreds and perhaps thousands of defendants who committed crack-related crimes before August will still face very harsh sentences.

In his recent decision, Judge Michael A. Ponsor of Federal District Court in Springfield, Mass., said that could not be right.  It is one thing, he wrote, to have to impose an unjust sentence.  But it is asking too much of judges, he went on, to require them to continue to sentence defendants under a racially skewed system “when the injustice has been identified and formally remedied by Congress itself.”

About 30 other federal trial judges have said more or less the same thing. Margaret Colgate Love, a former Justice Department official who oversaw pardon applications, said the decisions were a part of a movement by judges who are sick of imposing sentences they view as too harsh....

Almost no one defends the way offenses involving crack and powder were treated under the old law, which was enacted when crack, in particular, was seen as new, terrifying and seemingly unstoppable.  Crack and powder cocaine are two forms of the same drug. But, under the old law, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

The new law narrows the gap, for no reason better than compromise, to 18 to one.  In practice, that means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.

In November, the lead sponsors of the new law — Senator Richard J. Durbin, Democrat of Illinois, and Senator Patrick J. Leahy, Democrat of Vermont — wrote to Attorney General Eric H. Holder Jr.  They urged Mr. Holder to apply the new law to people who had committed their crimes before it was passed but were sentenced after.

The two senators wrote approvingly of an October decision from Judge D. Brock Hornby of Federal District Court in Maine, who said he would “find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.”  They urged Mr. Holder to exercise restraint and prosecutorial discretion “regardless of the legal merits of this position.”  The Justice Department responded by appealing the 56-month sentence Judge Hornby had imposed, saying the old law required a sentence of at least 10 years.

Judge Mark Bennet thoroughly explains why he is stil going to use 1:1 ratio in crack sentencings

In a week full of important crack sentencing news, I think the most interesting development come from Iowa in the form of a lengthy new opinion by US District Judge Mark Bennett in US v. Williams, No. CR 10-4083-2-MWB (D. Iowa Sept. 27, 2010) (available for download below). I could say so much about so many notable passages in this 82-page opinion, but I will be content to let the first paragraph and the conclusion of the Williams opinion speak for itself:

Defendant Billy Williams, Sr., came before me on March 15, 2011, for a presentencing hearing on his motion for downward variance, objections to the presentence report, and other legal issues, following his guilty plea to four crack cocaine charges.  Although there were numerous other issues to be resolved in the course of Williams’s sentencing, this Memorandum Opinion And Order focuses exclusively on the issue of whether I should continue to adhere to my prior determination that a 1:1 crack-to-powder ratio is appropriate to calculate the guideline sentencing range for crack cocaine offenses, or should now adopt the roughly 18:1 ratio adopted by the Sentencing Commission on November 1, 2010, pursuant to a congressional mandate in the Fair Sentencing Act of 2010.  When I first learned that the 2010 FSA was about to be passed, I just assumed that I would change my opinion from a 1:1 ratio to the new 18:1 ratio, because I assumed that Congress would have had persuasive evidence — or at least some empirical or other evidence—before it as the basis to adopt that new ratio.  I likewise assumed that the Sentencing Commission would have brought its institutional expertise and empirical evidence to bear, both in advising Congress and in adopting crack cocaine Sentencing Guidelines based on the 18:1 ratio.  Failing that, I assumed that the prosecution would present at the presentencing hearing in this case some evidence supporting the 18:1 ratio.  This Memorandum Opinion And Order addresses whether my modest expectations have been fulfilled and whether I should now also adopt the 18:1 ratio adopted in the amended Sentencing Guidelines....

Make no mistake: I believe that the replacement of the 100:1 crack-to-powder ratio of the 1986 Act and associated Sentencing Guidelines with the 18:1 crack-to-powder ratio of the 2010 FSA and the November 1, 2010, amendments to the Sentencing Guidelines was a huge improvement, in terms of fairness to crack defendants.  While such incremental improvement is often the nature of political progress on difficult social justice issues — and, in this instance, the increment is perhaps unusually large — an incremental improvement is not enough to make me abdicate my duty to “[c]ritically evaluat[e] the crack/cocaine ratio in terms of its fealty to the purposes of the Sentencing Reform Act.” See Whigham, ___ F. Supp. 2d at ___, 2010 WL 4959882 at *7.

Performing that duty here, I must reject the Sentencing Guidelines using the “new” 18:1 ratio, just as I rejected the Sentencing Guidelines using the “old” 100:1 ratio, based on a policy disagreement with those guidelines, even in “mine-run” cases, such as this one.  I must do so, because I find that the “new” 18:1 guidelines still suffer from most or all of the same injustices that plagued the 100:1 guidelines, including the failure of the Sentencing Commission to exercise its characteristic institutional role in developing the guidelines, the lack of support for most of the assumptions that crack cocaine involves greater harms than powder cocaine, the improper use of the quantity ratio as a “proxy” for the perceived greater harms of crack cocaine, and the disparate impact of the ratio on black offenders.  I also find that the “new” guidelines suffer from some additional concerns, in that they now create a “double whammy” on crack defendants, penalizing them once for the assumed presence of aggravating circumstances in crack cocaine cases and again for the actual presence of such aggravating circumstances in a particular case.

In one respect the “new” 18:1 guideline ratio is more irrational and pernicious than the original 100:1.  When the 100:1 ratio was enacted, Congress and the Sentencing Commission did not have access to the overwhelming scientific evidence that they now have.  This overwhelming scientific evidence now demonstrates that the difference between crack and powder is like the difference between ice and water — or beer and wine.  Can anyone imagine a sentence that is many times harsher for becoming legally intoxicated by drinking wine rather than beer?  Of course not.

I also reiterate that the proper methodology, in light of my policy-based rejection of the 18:1 ratio in the Sentencing Guidelines, is to calculate the guideline range under existing law (i.e., using the 18:1 ratio) and any appropriate guideline adjustments or departures, including the “new” adjustments for aggravating and mitigating circumstances, but then to calculate an alternative guideline range using a 1:1 ratio, again including appropriate guideline adjustments or departures, again including the “new” adjustments for aggravating and mitigating circumstances.  The court must ultimately use or vary from that alternative guideline range based upon consideration of the 18 U.S.C. § 3553(a) factors in light of case-specific circumstances.

I will sentence defendant Billy Williams, Sr., accordingly.

Download 10cr4083.dno305.Williams.newcrackratio.040711

US Sentencing Commission makes guideline crack reductions permanent

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

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

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

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

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

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

The latest, greatest district court opinion applying FSA to pipeline cases

A couple of veru helpful readers have alerted me to a notable new district court opinion concerning the application of the Fair Sentencing Act to pipeline cases.  Here is one report I received via e-mail concerning the opinion:

Although there are a litany of FSA retroactivity cases being decided on a weekly bases..., I thought the attached opinion was worthy of highlighting to you.  The case is US v. Watts, 09-cr-30030-MAP (D. Mass. April 5, 2011) [available for download below].

It's a 50 page Memorandum from Judge Ponsor that describes the history of crack sentencing and then explains in a thorough analysis why the FSA must be applied to defendants who are pending sentencing and why the General Savings Statute is no bar to that conclusion.  Consistent with your amicus letter [discussed here], it also distinguishes between individuals who have already been sentenced vs. defendants pending sentence.

There are a lot of choice passages, [including]:

• "A review of the background of [the General Savings Statute], and the authorities construing it, reveals that it is simply not the straitjacket some courts have supposed it to be." (slip op. at 33-34).
• "An examination of the muddied jurisprudential history of the General Saving Statute reveals the impertinence of the government’s position." (slip op. at 37).
• "It is only by covering his eyes and plugging his ears that any fairminded person could avoid the conclusion that Congress intended, by 'fair implication,' to treat the statutory amendments, whose effect was even more unjust than the effect of the Guidelines, the same way it directed the Guidelines to be treated, that is, to mandate that the amended statutes be applied to all defendants coming before federal courts for sentencing." (slip op. at 42).

Download JudgePonsorMemoonFSA-Watts

Some posts on this FSA issue:

• Second Circuit demands application of old 100-1 crack mandatories ... with laments
• Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• Federal sentencing litigation at its absolute finest
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Notable new letter to AG Eric Holder concerning application of the FSA

UPDATE:  Another helpful reader suggested that I spotlight this additional quote from the first few pages of the Watts opinion:

The broader question is whether federal trial courts will be required, for roughly the next five years, to perpetuate a congressionally recognized injustice.  It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice, as in the history of our nation it must be acknowledged they sometimes have. But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself.  For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendants such as Mr. Watts.

The government’s position here is that this court, and all federal trial courts in this country, must robotically continue to impose penalties that all three branches of government -- executive, legislative, and judicial -- and all elements of our political system -- Republicans and Democrats from the most conservative to the most liberal -- have now formally condemned as racially tainted and have explicitly rejected as not only unjust but mistaken from the outset.  For the reasons set forth below, the affront to manifest and undisputed congressional intent advocated by the government here is not required by law.

Second Circuit demands application of old 100-1 crack mandatories ... with laments

Anyone following closely the debate concerning the application of the old crack laws to defendants whose sentences are not yet final will want to check out the Second Circuit's work today in US v. Acoff, No. 10-285 (2d Cir. Feb. 10, 2011) (available here).  Here are the basics:  

Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841.  Although the district court accepted Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the indictment and admitted to by Acoff.  The government appealed.  We find that the district court acted unlawfully in sentencing Acoff to a term of imprisonment below the mandatory minimum.  Accordingly, we vacate the judgment of the district court and remand the case so that Acoff can be resentenced consistent with the statutory mandate.

In the course of reaching this ruling, the panel opinion rejects a number of different arguments with which the defendant contended that his pre-FSA crimes ought only be subject to the new reduced post-FSA mandatory minimums.  In addition, Judges Calabresi and Lynch write notable separate concurrences essentially to lament that the current state of the law seems to demand this outcome.  Here is a section from Judge Calabresi's concurrence:

To the extent that one could have viewed what occurred in Congress as a response to a suggestion by courts that the sentencing statutes were heading towards unconstitutionality, one might question whether the traditional presumption against retroactivity should apply.  In circumstances where the legislature has responded to a judicial suggestion of unconstitutionality, the appropriate starting point might well be the opposite: to assume that the change reaches back—at the very least to cover cases pending on appeal at the time of enactment (and perhaps further) — in the absence of a specific statement that some other metric should be used.  The import of this shift in presumption would be to force Congress to focus specifically on the impact of a legislative change resolving a potential constitutional problem, a focus that is not necessary in the run-of-the-mill situation where no countervailing constitutional-level values suggest that a statute’s official “effective date” and its practical application date should be different.  If the statute’s validity was becoming dubious, why should we assume that the legislature wished the statute’s constitutional dubiousness to apply in any case?

And here is a section from Judge Lynch's concurrence:

It is more difficult, however, to understand why Congress would want to continue to require that courts impose unfair and unreasonable sentences on those offenders whose cases are still pending.  Such defendants still need to be sentenced, and there are few persuasive reasons why they should be sentenced pursuant to an unjust law when Congress has already replaced it with a more just one.  It seems likely that simple congressional inattention produced this result: understandably focused on the much larger question of full retroactivity, when Congress decided against making the provisions of the FSA fully retroactive, it may simply have overlooked the distinguishable, and much smaller, category of past offenders who are still being sentenced for pre-FSA crimes.

This is simply a transitional problem.  The class of affected past offenders who are still subject to mandatory sentences calculated pursuant to the old and unjust 100-to-1 ratio is presumably small.  But it is no comfort to those, like the defendant in this case, who are sentenced unduly harshly under a now-discredited and repealed law, to know that a relatively small number of offenders share their predicament.

US Sentencing Commission forecasts impact of making new crack guidelines retroactive

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

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

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

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

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

Long, thoughtful (and wrong?) new opinion on FSA application to pending cases

As regular readers may recall, aided by a helpful lawyer in NYC litigating a Fair Sentencing Act issue for a defendant awaiting initial sentencing in a multi-defendant case, I had the opportunity and honor to serve as an amicus in an SDNY case dealing with the issue of applying the FSA's provisions to not-yet-sentenced defendants.  Yesterday, US District Judge Kenneth Karas issued a 58-page opinion in US v. Santana, No. 09-CR-1022 (S.D.N.Y. Jan. 20, 2011) (available for download below), which concludes this way:

The Court recognizes that over the course of the last two decades there has been growing belief among practitioners, courts, commentators, and many others that the 100-to-1 ratio that Congress hastily adopted in 1986 was based on insufficient facts and has resulted in severe sentences that have been disproportionately imposed on certain groups of individuals.  By enacting the FSA, Congress appears to have responded, at least in part, to this consensus. The Court also appreciates the desire of many, including the district judges who must impose mandatory sentences, that there be no more sentences based on the 100-to-1 ratio, and that this sentiment may explain the view that the FSA should govern all sentences going forward.... Indeed, at oral argument, counsel for Defendants, expressing similar sentiment, urged the Court to find some “play in the authority” to apply the FSA to this case. (December 8, 2010 Oral Argument Tr. 51.)  But, here, in light of the Saving Statute, “we are not dealing with optional rules of statutory construction.” Holiday, 683 A.2d at 79.  It is a law that like any other must be applied as written.  And while the goal of those who wish to immediately abandon the old sentencing regime in favor of that adopted in the FSA is understandable, it is a suggestion “addressed to the wrong governmental branch.” Marrero, 417 U.S. at 664.  As Justice Brennan has explained: “Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.” Id.

Here, Congress easily could have made clear its intent, if it wanted to, that the FSA apply to all individuals who had not yet been sentenced.... But here, Congress adopted no such clear provision.

Of course, it remains a possibility that Congress still could enact legislation expressly applying the FSA to all those not sentenced as of August 3, 2010.  Or, it is always possible that the Executive Branch, as Senators Durbin and Leahy have suggested, could exercise its discretion, through its charging decisions, to avoid continued imposition of sentences under the old law.  But, in the end, it is not the obligation or province of the courts to fill in the gaps left by the other branches of government.  Therefore, for the reasons stated herein, the pending motions to apply the FSA to this case are DENIED.

Download Santana FSA opinion

As my amicus filings in the Santana case reveal, I do not think this is the right result. But I remain grateful to have had a chance to participate in this litigation, and I am impressed that a busy district court judge found the time and energy to write at such great length on this important (but transitory) sentencing issue.

Some posts on the Santana litigation and recent related cases:

• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• Federal sentencing litigation at its absolute finest
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Notable new letter to AG Eric Holder concerning application of the FSA

Notable new letter to AG Eric Holder concerning application of the FSA

This morning I received a copy of a letter that the Leadership Conference on Civil and Human Rights sent to Attorney General Eric Holder urging him to issue guidance instructing all federal prosecutors to apply the modified mandatory minimums in the new Fair Sentencing Act of 2010 to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment. The letter can be downloaded below, and here is an excerpt:

The passage of the FSA was a watershed moment in the move toward fairness in criminal sentencing and in the effort to correct a long standing wrong. Your leadership and support for the FSA were not only crucial to its passage, but also conveyed the need for immediate action. As you noted last year when testifying before the Senate, “the stakes are simply too high to let reform in this area wait any longer.” We agree....

All of this would lead us to think that the Justice Department would work with some urgency to prosecute crack offenders along the new guidelines consistent with the remedial purpose of the Act. But to our dismay, Assistant U.S. Attorney Michael J. Conley recently argued in court that it was the Justice Department‟s policy, and not simply a matter of prosecutorial discretion, to apply the old mandatory minimums to all future prosecutions and sentencing based on pre-August 3, 2010, conduct.... As Attorney General, you are well within the bounds of your authority to issue such guidance since there is ample precedence for producing various memoranda addressing Department policies with respect to charging, case disposition, and sentencing.... The recent passage of the FSA emphatically reaffirms Congress' intention that crack defendants are entitled to fair treatment. It makes no sense to apply punishment differentially for defendants whose conduct occurred a few days apart.

For these reasons, we call upon you to issue new guidance to all Justice Department prosecutors that closely follows the Congressional intent behind the Fair Sentencing Act of 2010 found in the legislative history surrounding its passage. Such guidance necessarily entails seeking sentences consistent with the Act‟s reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place.

Download 1_18_11_Ltr_to_AG_Holder_on_Crack_Sentencing

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Federal sentencing litigation at its absolute finest
• WSJ notes dispute over application of FSA to pending cases
• Another district judge rules FSA terms should apply to not-yet-sentenced defendant
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases

"The Moral Urgency of Crack Retroactivity"

The title of this post is the headline of this commentary by Julie Stewart, the president of Families Against Mandatory Minimums, which ran yesterday at The Huffington Post.  Here is how it begins:

On August 3, 2010, the nation's first African-American president signed into law a bill to reform what many considered the most racially discriminatory sentencing policy in federal law.  The old policy required dramatically more severe penalties for crimes involving crack cocaine than for offenses involving powder cocaine.  The president and Congress deserve credit for working together to lower crack penalties.  Yet, in a cruel irony, they failed to provide any relief to the very prisoners whose unnecessarily harsh sentences they had pointed to as the impetus for reform.  As our nation celebrates the life and legacy of Martin Luther King, Jr., we implore the president and new Congress to listen to their consciences, do what is right, and apply the reformed crack penalties retroactively to all offenders.

A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases

US District Judge Gregory Presnell, whose first opinion on the application of the new Fair Sentencing Act to pending cases was posted here, has issued now another interesting FSR order entered earlier this week in US v. Green, Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 7, 2011) (available for download below). This opinion notes and summarizes the district court divisions regarding the application of the FSA to offenses committed before its enactment:

[T]he Court has now obtained a survey from counsel in a related case, United States v. Smith, No. 6:10-cr-202 (Doc. 54), which summarizes all written opinions dealing with application of the FSA to defendants whose conduct occurred before August 3, 2010, when the FSA was enacted, but who were sentenced after its enactment.  That survey is attached [and can also be downloaded below].

In sum, there have been no circuit court opinions dealing with the application of the FSA to defendants in the same position as this defendant -– i.e., who were sentenced after August , 2010, for offenses committed before that date.  There are, however, eighteen district court opinions that fall into this category.  Eleven of these opinions, from nine states and ten districts, have held that the FSA should be applied in this circumstance. Seven opinions from three states and four districts have held otherwise.

 Download FSA green_order

Download FSA green_attachment

I am not certain that accounting of 18 written district court opinions on the application of the FSA to these pipeline cases is the entire universe of written opinion on this issue and I am certain that there have been a lot of addition on-the-record resolutions of these issues by various district judges going both ways without the production of a written opinion.  Thus, Judge Presnell's survey is just a partial account of the deep split in the district courts over this issue, which is highly consequential to lots and lots of defendants in lots and lots of courts around the nation.

As explained in this prior post, I remain troubled that the Department of Justice persists with its advocacy policy calling for the unfair and now reformed old crack sentencing statute to be applied for as long as possible to as many defendants as possible.  That concern is enhanced by the reality that this advocacy position is contributing to deep disparity in the sentencing of pipeline crack cases (and my view that DOJ ought to be using its litigation resources and energies on other issues).  It will be interesting to keep an eye on these issues of law and advocacy as they eventually moves to the circuits and possible the US Supreme Court.

Another district judge rules FSA terms should apply to not-yet-sentenced defendant

US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame, garners still more appreciation from me for a little order entered earlier this week in US v. Johnson , Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 4, 2011) (available for download below).  This opinion addresses the widely debated issue of whether the new terms of the Fair Sentencing Act are to apply to not-yet-sentenced defendants who committed crack offenses before the FSA became law. These final few substantive paragraphs readily reveal why I especially appreciate Judge Presnell's work here on an issue I have been helping to litigate in recent months:

Several Circuits have rejected the argument that the provisions of the FSA should be applied after the fact to defendants who were sentenced before the Act became law.  See, e.g., United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Glover, 2010 WL 4250060 at *2 (2d Cir. Oct. 27, 2010); United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010); United States v. Carradine, 621 F.3d 575, 579-81 (6th Cir. 2010).  No Circuit has yet addressed the question now confronting this Court -- whether the amended (lower) mandatory minimum sentence under the FSA applies to a defendant whose offense occurred before August 3, 2010, but who is sentenced thereafter.

There are, however, district court opinions that have found that the new mandatory minimums are applicable in a case such as this, where the conduct predated the FSA but the sentencing occurred afterward.  See, e.g., United States v. Johnson, Case No. 3:10-cr-138 (E.D. Va. Dec. 6, 2010); United States v. Spencer, Case No. 5:09-cr-400-JW-1 (N.D. Cal. Nov. 30, 2010); United States v. Favors, No. 1:10-cr-384-LY-1 (W.D. Tex. Nov. 23, 2010).

Perhaps the most thorough and compelling opinion is that of Judge Hornby in United States v. Douglas, 2010 WL 4260221 (D. Me. Oct. 27, 2010).  A number of other courts have followed Judge Hornby’s decision.  See, e.g., United States v. Gillam, 2010 WL 4906283 (W.D. Mich. Dec. 3, 2010); United States v. Shelby, Case No. 2:09-cr-00379 (E.D. La. filed Nov. 13, 2009).  Professor Douglas Berman, an expert in the field of federal sentencing, has also made two submissions to Judge Kenneth M. Karas for his consideration in United States v. Santana, Case No. 7:09-cr-01022-KMK-1 (S.D. NY filed Oct. 22, 2009).  These submissions, attached to this opinion as Appendix B, provide persuasive arguments for application of the FSA to all defendants who are sentenced after the effective date of the Act.  Along these same lines, Senator Dick Durbin and Senator Patrick Leahy were lead sponsors of the FSA.  In a letter to the Attorney General dated November 17, 2010, they cited Douglas with approval and implored him to apply the modified mandatory minimums of the FSA to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment.  A copy of this letter is attached as Appendix C.

The Government acknowledges that I must sentence Johnson under the new FSA sentencing guidelines, which are based on an 18:1 crack-to-powder ratio, but would have me apply the old mandatory minimum sentencing provisions, which are based on a 100:1 crack to powder ratio.  This is an incongruous and absurd result, which is at odds with the intent of Congress in enacting the FSA.

Download Cleotha Johnson FSA order

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Federal sentencing litigation at its absolute finest
• WSJ notes dispute over application of FSA to pending cases

"Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses"

The quote in the title of this post is a line from this CNN commentary by Kemba Smith Pradia, which is headlined "My life saved by reprieve of 24-year sentence for crack." Here is how it begins:

Ten years ago, days before Christmas, President Bill Clinton changed my life forever. I was in federal prison, serving the seventh year of a 24-year sentence for a first-time nonviolent crack cocaine offense.

Clinton's mercy and acknowledgement that my sentence was unjust led him to grant me a commutation.  Had he not done so, I would be in prison until 2016.  On December 22, the anniversary of my release, I will join others in a fast for justice to honor those in prison who deserve the same relief from their long sentences for low-level drug offenses.

Many things have changed in the last decade.  I graduated from college, attended law school, got married, raised my son who was born while I was incarcerated and gave birth to a daughter.  I also established my own foundation to give hope to children of incarcerated parents.

At the same time, the sentencing law that I was convicted under came under intense scrutiny.  This year, President Barack Obama signed the Fair Sentencing Act to limit the harsh mandatory minimum sentences associated with low-level crack cocaine offenses. Progress has been made.

But also since my release, an estimated 5,000 men and women have gone to federal prison each year for a crack cocaine offense.  They have been subject to a sentencing structure that the U.S. Sentencing Commission, an independent judicial body, said applied "most often to offenders who perform low-level trafficking functions, wield little decision-making authority, and have limited responsibility."

Indeed, I went to prison for being complicit in my abusive boyfriend's crack cocaine trafficking operation.  Prosecutors in the case acknowledged that I never sold, handled or used any drugs.  Just as Clinton did 10 years ago, Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses.

WSJ notes dispute over application of FSA to pending cases

The Wall Street Journal has this new piece noting the on-going legal battles over applying the new crack  law to federal cases in the sentencing pipeline.  The piece is headlined "Crack Sentences Still Tough: Hard Time Given Even for Small Offenses Committed Before Rules Eased in August," and here are excerpts:

The Fair Sentencing Act passed this summer knocked down the requirement of long prison sentences for possession of crack cocaine, but a quirk in how the law was written has resulted in some defendants being sentenced under the old rules — and the situation could continue for years.

Lawmakers who backed the change, with the support of the attorney general and federal sentencing officials, aren't pleased with the outcome. They said the new guidelines rectified an injustice born during the drug wars of the 1980s. Instead, the snafu has created a parallel universe where defendants face different rules for the same crimes — sometimes in front of the same judge — because their offenses were committed at different times.

The cause of the problem: Congress didn't say whether the Act should apply to crimes committed before Aug. 3, when it was signed into law. Penalties for any repealed law remain in place for acts committed under that statute, unless lawmakers "expressly" establish otherwise, according to a federal statute....

But prosecutors and judges have always had some discretion in the crimes that are charged and sentences meted out. Congressional aides said the thinking of lawmakers who supported the law without a retroactive provision was that most prosecutors and judges would opt to follow the new, more lenient rules, even for acts committed before Aug. 3....

Nearly 5,700 defendants each year are sentenced for crack-cocaine crimes, according to data from the U.S. Sentencing Commission, the agency that sets sentencing guidelines for judges....

Lawmakers didn't address whether the law should be retroactive out of concern that a battle over this issue would scuttle the tenuous deal that was reached to pass it, congressional aides said. Opponents of making the law retroactive argued that doing so would lead to a flood of appeals from people already sentenced....

Most judges are issuing sentences under the old crack-cocaine law for crimes committed before Aug. 3. Earlier this month, Hartford, Conn., U.S. District Judge Christopher Droney sentenced a defendant to five years for possessing 14 grams of crack, after prosecutors argued that he had no alternative. Judge Droney said at the sentencing that he likely would have been more lenient if he had any leeway....

In Maine, U.S. District Judge D. Brock Hornby recently broke from the pattern, ruling in October that he would sentence William Douglas under the new law for an older crime. Mr. Douglas was convicted of possessing 113 grams of crack. Under the old rules he faced 10 years in prison.

In his ruling, Judge Hornby rejected the argument that the harsher law should be imposed, saying, "Congress stated its goal was to restore fairness to Federal cocaine sentencing. But what possible reason could there be to want judges to continue to impose sentences that are not fair over the next five years while the statute of limitations run?"

Prosecutors filed notice they planned to appeal.

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Federal sentencing litigation at its absolute finest

Federal sentencing litigation at its absolute finest

The title of this post is a fitting description of what I experienced this morning in the courtroom of U.S. District Judge Kenneth Karas of the Southern District of New York. 

As regular readers know, I have been troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions. And, with the help of a terrific attorney litigating this issue for a client awaiting with a case pending before Judge Karas, I had the opportunity to submit a couple amicus letters (discussed here and here) setting out my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Today was argument day in the White Plains courthouse of the SDNY, and Judge Karas devoted three hours to hearing argument from numerous defense counsel and from me and from the Government.  At every stage of the proceeding today, I was wowed by the effectiveness, insightfulness and kindness of all the litigating and especially Judge Karas.  I feel confident asserting that the level of argument and legal discourse in this district court (as well as the copious briefing that came before the argument) rivaled what one expects before the Courts of Appeals or even the Supreme Court.

I always hope and expect that federal district courts will give as much time and attention to sentencing issues as do appellate courts, but busy dockets and busy litigants do not always make that possible.  In this case, my hopes and expectations were not only met, but exceeded.  And I could gush on at length about many facets of the experience, but at this point I have probably already given the parties involved a justified sense of how impressed I was by their efforts and how grateful I was to be able to participate in this (not so?) little facet of federal criminal justice administration.

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

A few more thoughts on applying the FSA to not-yet-sentenced defendants

As regular readers know, I am troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions.  Because I think the argument for applying the FSA to defendants awaiting initial sentencing is especially strong, I have previously here posted an amicus letterthat I submitted in a New York case with my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Earlier this week, I submitted another letter in this case that is particularly focused on the Government's claim that, with regards to the FSA's applicability, there is no basis for distinguishing between already sentenced defendants and not yet sentenced defendants.  That full letter is available for download below, and here are two key paragraphs of my argument:

Critically, the Government seeks to obscure the important and sensible distinction between applying the FSA retrospectively to defendants who had been already sentencedas of its enactment date, and applying the FSA prospectively to defendants not yet sentenced as of its enactment date.  It is reasonable and sensible to suggest that Congress concluded that offenders who were sentenced before the FSA became law should not be able to demand a return to court for a complete “redo” — with all the added expense and uncertainty of the resentencing process — based on the FSA’s new sentencing provisions and its ordered revision of the federal sentencing guidelines.  But it is neither reasonable nor sensible to suggest that Congress concluded that only minor crack offenders who have not yet been sentenced should be subject to harsher (now-amended) sentencing laws while all major crack offenders who have not yet been sentenced should get the benefits of the amended sentencing provisions of the FSA.

Stated slightly differently, it is reasonable to assume and conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable already sentenceddefendants from reopening and relitigating the sentences they received before the FSA became law.  But it is not sensible to assume or conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable not-yet-sentenceddefendants from being initially sentenced pursuant to the FSA’s new sentencing structure.  In fact, judicial economy is better served by making the terms of the FSA’s sentencing structure applicable to all not-yet-sentenced defendants: a simple, straight-forward rule applying the FSA to pending cases would prevent sentencing judges in many cases from having now to figure out (1) whether a defendant’s offense conduct took place before or after the FSA enactment, and/or (2) whether and how a defendant’s sentence should be governed by the new crack sentencing guidelines or the old crack sentencing statute.  Indeed, though it is easy to understand how Congress’s interest in sentencing fairness, consistency and judicial economy supports application of the FSA to all not-yet-sentenced defendants, it is hard to understand or even to identify any valid congressional interest that would be served by continuing to apply the older (and now amended) crack sentencing provisions to only not-yet-sentenced minor crack offenders.

Download FSA pipeline applicability follow-up letter

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

Notable FSA application letter from large number of defense counsel to USA for SDNY

As regular readers know, I have been following closely the debates over the application of the new sentencing terms of the Fair Sentencing Act to pending cases.  Indeed, through this amicus letter submitted in a pending case in the Southern District of New York, I have exaplained my view that there is "strong contextual support" for application of the FSA to all pending not-yet-sentenced cases.  In addition, this post of mine from a few weeks ago wondered "Why is Obama's DOJ, after urging Congress to 'completely eliminate' any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?". 

Against this brackdrop, I am pleased to be able to post a letter addressed to Preet Bharara, the United States Attorney of the Southern District of New Yorkset today, which asks about local FSA policy and it signed by a large group of criminal defense attorneys representing defendants in New York. Here is a snippet:

As you're undoubtedly aware, about two weeks ago, Senators Durbin and Leahy wrote Attorney General Holder to urge him to direct federal prosecutors to take the position that the Fair Sentencing Act of 2010 (the "FSA") should be applied to not-yet-sentenced defendants (a copy of their letter is enclosed). Consistent with legislative history we have canvassed in motions submitted in cases throughout this district, the two Senators explain that Congress intended the FSA to apply to all defendants who had not yet been sentenced when the law took effect.1 Judges are already starting to apply the FSA to pending cases over the Government's objection. See, e.g., United States v. Douglas, 2010 WL 4260221 (D. Me. 2010) (Hornby, J.). Included among them is the Honorable Shira A. Scheindlin, who recently applied the FSA to the sentencing of a defendant whose conduct predated its enactment. See United States v. Jeannette Garcia, 09 Cr. 1054 (SAS).

In light of the Senators' letter and what we believe will be an increasing number of decisions applying the FSA to pending cases, we write to inquire whether you plan to adopt a policy requiring (or at least allowing) prosecutors in this district to support defense motions to apply the FSA to such cases. Not only do we believe it would be consistent with congressional intent, the goal of sentencing consistency would be furthered by a uniform policy that accords with the decision of Judge Scheindlin and other district judges. Many of us have more than one client that would be affected by a change in policy. We note that the large number of dispositions that would undoubtedly follow would provide the added benefit of conserving prosecutorial and judicial resources that could be better applied to other cases.

Download Letter to Hon Preet Bharara 11-29-10

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases