Thursday, January 26, 2012

House Judiciary member asks AG Holder good (and overdue) questions on pardon process

Over at Pardon Power (where PS Ruckman continues to do great work on the recent Mississippi pardon spree), there is now this notable new post reporting that a "Legislative Assistant in the Office of Rep. Robert C. 'Bobby' Scott (VA-03) -- member of the House Judiciary Committee -- has confirmed that the following questions have been submitted to U.S. Attorney General Eric Holder":

1. You testified when you were confirmed that you would study the problems with the clemency advisory process and fix them. Please let us know what you have found and what changes you have made or plan to make.

2. It has been reported that the pardon attorney no longer assigns commutation cases to staff attorneys, and does not write a recommendation in the large majority of these cases.

3. How does this fulfill the Department's responsibility to advise the president about the merits of each case?

4. Doesn't this make the commutation process meaningless for most applicants?

5. How can the pardon attorney himself conduct a meaningful review of thousands of commutation petitions?

6. Even if most of these should be denied, if no one is really looking at them, how do you know each one is without merit?

7. We can all agree that no system is perfect.  The legal system is no exception.  There are mistakes.  The Constitution gives the president a role in fixing such mistakes.  How does this procedure help the president do that?

8. How does the pardon office identify the rare exception that deserves a closer look? Political support?  Media attention?  If so, is that the best way — the most fair way — to make these decisions?

As the title to this post suggests, I view all of these question to AG holder to be good ones and long overdue.  In addition, I would have added a substantantive query based on DOJ's testimony and recent Congressional work on crack sentencing: "In light of your Department's advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?"

January 26, 2012 in Clemency and Pardons, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, December 12, 2011

Why the wasteful(?) Eighth Circuit affirmance of FSA pipeline sentence with Hill and Dorsey pending?

As regular readers know (and as reported here), last month the Supreme Court via cert grants in Hill and Dorsey took up the issue of whether the Fair Sentencing Act's reduce crack mandatory minimums apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date.  Because this circuit-splitting issue will now be resolve by the Supreme Court within a matter of months, I find notable and a bit worrisome this ruling today in US v. Duncan by an Eighth Circuit panel which affirms a "old" 5-year mandatory minimum term against a defense challenge that the new law should apply.

The ruling in Duncan notes the circuit split on this FSA application issue and the fact that the Supreme Court has taken up this matter, but it then affirms the sentence by noting existing circuit precedent that forecloses the defendant's argument that the reduced FSA mandatory minimum terms apply to this pipeline case.  But I cannot help but wonder why the Eighth Circuit did not simply hold on to this case awaiting guidance from SCOTUS rather than resolve it against the defendant and thereby require her to file a cert petition to keep the issue preserved.

I assume there are right now dozens, if not hundreds, of similar cases pending in the circuits courts that have rejected the FSA applicability in this situation, and I also assume that the most efficient (and arguably just) way to handle these cases right now is to just keep them on the circuit docket until the Supreme Court rules so that additional filings are not required by the parties until we get a SCOTUS decision.  The approach taken by the Eighth Circuit, however, will now require (1) a SCOTUS cert filing by the defendant, (2) consideration by the SG concerning any possible SCOTUS response, (3) a GVR by SCOTUS if it issues a ruling in Hill and Dorsey with any pro-defendant elements.  And, assuming the defendant in Duncan has a court appointed attorney (as do the vast majority of crack defendants) each one of these steps will be taking place entirely on the federal taxpayers' dime.

Given the size of the federal budget, the thousands of dollars that seem likely now to be wasted in this Duncan case is hardly going to be noticed.  But I still wonder what benefits might be gained by the Eighth Circuit's (too) quick disposition while this matter is pending before SCOTUS.  And I also wonder if (and hope that) other circuits are thinking through these matters before being too quick to resolve cases that seem likely to be back on their docket in only a matter of months.

December 12, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, November 28, 2011

Lots of details on the new SCOTUS sentencing cases

Via SCOTUSblog at this post, I can provide here more information and links to key documents in the exciting new sentencing cases taken up by the Supreme Court this morning:

[T]he Court had been holding one of today’s granted petitions, Hill v. United States, to be considered alongside several other petitions that raise the same issue:  whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.... Hill has been consolidated with Dorsey v. United States (case page forthcoming), for a total of one hour of argument....

Hill v. United States (Granted)

Docket: 11-5721
Issue(s): Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.

Certiorari stage documents:

 

Southern Union Company v. United States (Granted)

Docket: 11-94
Issue(s): Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Certiorari stage documents:

Recent related posts on the new SCOTUS cases:

November 28, 2011 in Blakely in the Supreme Court, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS to review FSA pipeline issue via Dorsey and Hill grants

As indicated on this Supreme Court order list released this morning, the Justice have taken up a pair of cases, Hill v. United States11-5721, and Dorsey v. United States11-5683, to address the circuit split over whether the new Fair Sentencing Act new mandatory minimums for crack offenses apply to defendants who committed crimes but were not yet sentenced when the FSA became law.  Kudos to the Court and huzzah!

Regular readers know that I have be following this intricate "crack-cases-in-the-pipeline" sentencing issue closely for nearly two years (starting way back in March 2010 when the Senate passed its version of the FSA).  I have lots of thoughts on this matter, and I am already thinking about authoring an amicus brief in Hill and Dorsey to address some statutory construction canons that, in my view, have not been fully briefed in the lower courts.

Though I will have more on these cases in the weeks and months ahead, I sure hope for the sake of lots of defendants that lawyers have been effectively preserving this issue in cases that have been in the pipeline all this while.  This issue is now on track to be conclusively resolved by June, and perhaps even sooner (though not a moment too soon).

November 28, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, October 20, 2011

Split Fifth Circuit deepens split over FSA's application to pipeline cases

I am not tickled to have to report than another circuit has now refused to allow the application of the Fair Sentencing Act's revised statutory sentencing minimums to defendants who committed crack offenses before the FSA became law, but were sentenced after it was signed by President Obama in August 2010.  The new ruling comes from the Fifth Circuit in US v. Tickles, No. No. 10-30852 (5th Cir. Oct. 19, 2011) (available here), and the per curiam majority opinion begins this way:

The court considered these cases jointly without oral argument because they raise a single issue: whether these defendants, who were convicted inter alia of possession with intent to distribute crack cocaine, were entitled to be sentenced according to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111- 220, 124 Stat 2372, when their illegal conduct preceded the Act but their sentencing proceedings occurred post-enactment.  The issue is the retroactivity, or partial retroactivity, of the FSA, a statute intended by Congress to “restore fairness to Federal cocaine sentencing,” 124 Stat. at 2372, by reducing the previous 100:1 ratio between thresholds for sentences for crack and powder cocaine offenses. We are one among many circuit courts that have thoroughly vetted this issue, and we have little to add to the discussions of others.  As will be seen below, we side with those courts that have denied retroactive application.

The dissent by Judge Stewart ends this way:

The will of Congress, as expressed in the Fair Sentencing Act’s substance, preamble, and title, will be disregarded by the courts’ continued imposition of severe penalties which Congress has explicitly determined to be unfair.  Accordingly, I agree with a number of our sister circuits that the provisions of the Fair Sentencing Act apply to all federal cocaine offenders sentenced after the statute’s enactment, regardless of whether the underlying offense conduct occurred prior to the Act’s enactment.  See United States v. Douglas, 644 F.3d 39 (1st Cir. 2011); Rojas, 645 F.3d 1234 (11th Cir. 2011); United States v. Dixon, 648 F.3d 195 (3d Cir. 2011).

The majority opinion would continue to impose disproportionately harsh sentences of imprisonment on many crack cocaine offenders, despite Congress’s clear and obvious determination that such penalties are unfair. For this reason, I respectfully dissent.

October 20, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, October 19, 2011

How much sentencing unfairness is resulting from Fair Sentencing Act pipeline disputes?

The question in the title of this post is prompted in part by this notable recent report by Michelle Olsen, which is headlined "Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?" and which first appeared earlier this week in the National Law Journal’s Supreme Court Insider.  Here are background basics as set forth effectively in this piece:

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.  Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies.  Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants.  Each committed crack offenses before the FSA became law, but were sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant.  As a result, the defendants would get the higher sentences.  This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach.  Originally, prosecutors had been told that the FSA only applied to post-FSA offenses.  However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy.  Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact....  As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA....

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari.  If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions.  In such cases, the Court can appoint an attorney to defend the judgments below....

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending.  On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

Given that a key purpose of modern federal sentencing reform was to reduce nationwide sentencing disparities, any circuit split over any federal sentencing provision undermines a goal of modern reforms.  But the circuit split over application of the FSA here is especially significant and disconcerting because many hundreds of crack offenders are sentenced in federal courts every month AND because the only goal of the FSA was to finally make crack sentencings a little more fair nationwide. 

Congress perhaps deserves the most blame for this FSA application mess because it never specified an express effective date for the reduced mandatory minimum crack sentencing provisions in the FSA.  But I also want to blame the Justice Department for making a bad situation even worse.  As this article notes, AG Eric Holder and his Justice Department initially (and I think wrongly) decided that the FSA's application should be limited; then, a full year later, the AG decided (a day late and a few dollars short) that the government should advocate the FSA's application to pipeline cases.  As a matter of substance, I was pleased when DOJ finally read the FSA the way I think it should be read; as a matter of process, this AG flip-flop aggravated the confusion, uncertainty, disparity and unfairness that continues to fester in lower courts sentencing hundreds of crack defendants every month.

There is an additional reason I am grumpy about how the Justice Department is dealing with this FSA pipeline issue: to my knowledge, there has been no serious or significant effort by any Obama Administration officials to urge the Supreme Court to take up this issue ASAP.  These FSA pipeline concerns were lurking from the moment the House in July 2010 passed the FSA and sent it to the White House for signing by President Obama (as I noted in this post).  And the problematic split over application of the FSA in pipeline cases was already clear a year ago when the Douglas case (discussed here) became the first major district court ruling that the FSA should be applied to not-yet-sentence defendants.  Without an extra push from the feds, I fear SCOTUS may not get around to finally resolvingthis FSA pipeline issue until perhaps 2013, with more large and small sentencing unfairnesses likely taking place in lower courts each month along the way.  What a waste.

UPDATE AND CORRECTION: A helpful reader alerted me that earlier this month, the feds have asked SCOTUS to take up this issue through its response to a petition for cert from the defendant in a Seventh Circuit case. The discussion section of this filing (which can be downloaded below) begins this way: 

Petitioner contends (Pet. 7-17) that this Court’s intervention is necessary to resolve a conflict in the circuits about the applicability of the FSA’s revised statutory penalties to preenactment offenders.  The government agrees.  The court of appeals incorrectly concluded that defendants who committed their offenses before the FSA are still subject, in post-FSA sentencings, to heightened statutory penalties that Congress has repudiated as fundamentally unsound.  Although that conclusion accords with the Eighth Circuit’s, it conflicts with the holdings of the First and Third Circuits.  The Seventh and Eighth Circuits have cemented the circuit conflict by denying en banc review to consider adopting the government’s position.

Contrary to the Seventh and Eighth Circuit’s positions, both the text and the purpose of the FSA demonstrate Congress’s intent that the Act apply immediately at all initial sentencing proceedings.  The issue, which will potentially affect the sentences of thousands of current and future federal defendants, is squarely presented in this case. This Court should accordingly grant certiorari and reverse the court of appeals’ judgment.

Download 11-5721_Hill_v._United_States

October 19, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, August 09, 2011

Third Circuit (joining First and Eleventh Circuits) applies FSA lower mandatory minimum terms to pipeline cases

Via its opinion today in US v. Dixon, No. 10-4300 (3d Cir. Aug. 9, 2011) (available here), the Third Circuit has joined two other circuits in declaring that the new mandatory minimum sentencing provisions of the Fair Sentencing Act apply to all defendants who were not yet sentenced at the time of the Act's enactment.  Here is how the opinion in Dixon opinion starts and ends:

The question presented in this appeal is whether the more favorable mandatory minimum prison sentences imposed by the Fair Sentencing Act of 2010 (the “FSA” or the “Act”) apply retroactively to defendants, like Kenneth Dixon, who committed their crimes before the Act became law, but who were sentenced afterwards.  We hold that the FSA does apply in this instance.  The language of the Act reveals Congress‟s intent that courts no longer be forced to impose mandatory minimums sentences that are both indefensible and discriminatory.  Therefore, we will vacate the judgment of the District Court and remand for resentencing....

We hold that the FSA requires application of the new mandatory minimum sentencing provisions to all defendants sentenced on or after August 3, 2010, regardless of when the offense conduct occurred.  “[T]he terms of the law as a whole,” Great N. Ry., 208 U.S. at 465, namely the Act's grant of emergency authority to the Sentencing Commission and the desire to achieve “consistency” through “conforming” amendments, in conjunction with the directive in the Sentencing Reform Act of 1984 to apply the Guidelines in effect on the day of sentencing, lead to the inescapable conclusion that Congress intended to apply the FSA to Dixon.  This interpretation of the Act comports with its stated purpose to restore fairness to federal cocaine sentencing.  To conclude otherwise would frustrate this goal and set “the legislative mind . . . at naught.” Id.  Accordingly, we will vacate the judgment of the District Court and remand so that Dixon may be sentenced in accordance with the terms of the FSA.

Some prior posts on this FSA pipeline issue:

August 9, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, July 29, 2011

"Crack cocaine: One woman's tale"

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

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

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

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

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

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

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

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

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

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

Monday, July 18, 2011

A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases

As set out in this post from Friday, I was very pleased to learn that Attorney General Eric Holder had sent a two-page memo to all federal prosecutors explaining that he now, finally, believed the FSA's new statutory sentencing terms should apply to all defendants sentenced after the effective date of the FSA. I also expressed my disappointment that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  I thereafter received a sharp email from Dan Stiller, a Wisconsin federal public defender, which he has allowed me to reprint here in full:

The celebration of the Holder memo announcing the AG's flip-flop is justified but, thus far, short-sighted. The position taken in the memo is curative but only to a point.   For 11 months now, AUSAs from coast-to-coast have, at the AG's command, stood before federal courts, arguing an arcane constitutional provision as a means of narrowing the FSA's reach.  As a result, hundreds of defendants over those 11 months have been sentenced to no-longer applicable mandatory minimums.  

Worse, the AG's position over those 11 months has resulted in law -- bad law -- being made and the AG's change-of-heart doesn't (and shouldn't) change the recent jurisprudence.  Here in the Seventh Circuit, the court's stated reason for declining to apply the FSA to pre-enactment conduct being sentenced post-enactment was not "because such is the Government's position."   Instead, the Seventh Circuit, acting upon the Government's now-abandoned suggestion, concluded that the savings clause precludes the FSA's application to pre-enactment conduct.  The AG's flip-flop can't, to borrow Judge Walton's phrase from the Clemens trial, unring the relevant bell.

So while we celebrate the Holder memo, I fear the plight of my 170-gram pre-enactment client who appears for sentencing on Wednesday before a district court within the Seventh Circuit.  While I will be waiving the Holder memo in the direction of the bench, I fear that the judge will waive the Seventh Circuit's decision in Fisher back at me.  If so, my client will be sentenced to a defunct mandatory minimum that is nearly double the low-end of his post-enactment guideline range.  So forgive me if my celebration of the Holder memo is muted.

Some prior posts on this FSA pipeline issue:

July 18, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Friday, July 15, 2011

Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue

Regular readers know that, since the Fair Sentencing Act became law in August 2010, lower courts have been divided over whether defendants who committed crack offenses before the FSA was enacted but had not yet been initially sentenced should get the benefits of the FSA's new mandatory minimum provisions.  And, as I explained in this post way back in October 2010, I have been troubled and disappointed that the Justice Department had been arguing in these "pipeline" cases that defendants should continue to be sentenced under the old now repealed 100-1 crack/powder ratio if their crimes were committed before August 3, 2010.  

I am now pleased to report than I need not be troubled or disappointed by DOJ's position on this issue anymore, because today Attorney General Eric Holder has come to see the statutory sentencing light and reversed course.  In a two-page memo to all federal prosecutors dated July 15, 2011 (and available for download below), AG Holder details his new view on this issue: 

In light of the differing court decisions -- and the serious impact on the criminal justice system of continuing to impose unfair penalties -- I have reviewed our position regarding the applicability of the Fair Sentencing Act to cases sentenced on or after the date of enactment.  While I continue to believe that the Savings Statute, 1 U.S.C. § 109, precludes application of the new mandatory minimums to those sentenced before the enactment of the Fair Sentencing Act, I agree with those courts that have held that Congress intended the Act not only to "restore fairness in federal cocaine sentencing policy" but to do so as expeditiously as possible and to all defendants sentenced on or after the enactment date. As a result, I have concluded that the law requires the application of the Act's new mandatory minimum sentencing provisions to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.  The law draws the line at August 3, however.  The new provisions do not apply to sentences imposed prior to that date, whether or not they are final.  Prosecutors are directed to act consistently with these legal principles.

Download Holder FSA memo 7.15.11

Though I am pleased that AG Holder has now seen the light on this issue of statutory interpretation, I remain deeply disappointed that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  Among the costs of this mistake has been a large number of sentencings based on the old law that now will need to be redone, not to mention many litigation resources expended as defense counsel and judges have been force to grapple with DOJ's prior position.  So while I celebrate DOJ now getting this right, I cannot help but express sadness that this reversal of course took so long.

Among the benefits of this change of position should be a quick end to lots of district and circuit (and possible SCOTUS) litigation over this pipeline issue.  But, of course, the principal benefit of this new DOJ policy is that more defendants will now be able to benefit from the fairer sentencing terms that Congress created through its enactment of the FSA last year.

Some posts on this FSA pipeline issue:

July 15, 2011 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, July 06, 2011

Eleventh Circuit panel re-issues (updated) opinion finding FSA lower crack mandatories apply all sentenced after FSA

Regular readers may recall this post a few weeks ago about the important Eleventh Circuit panel ruling in US v. Rojas late last month declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter."  Today, the Eleventh Circuit released a new version of the Rojas opinion, available here, which now starts this way:

We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341, 2011 WL 2120163 (1st Cir. May 31, 2011).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

Here is what appears to be a key new paragraph from the new Rojas opinion:

We do not disagree with our sister circuits in one major sense — absent further legislative action directing otherwise, the general savings statute prevents a defendant who was sentenced prior to the enactment of the FSA from benefitting from retroactive application.  Further, we share in the well-reasoned view of the First Circuit that Congress intended for the FSA to apply immediately.  See Douglas, 2011 WL 2120163, at *4 (“It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums.”).

Some posts on this FSA pipeline issue:

July 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, July 05, 2011

Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website

I am very pleased to see and to report that the US Sentencing Commission's ever-improving website now has this special webpage titled "Materials on Federal Cocaine Offenses."  This new special page provides especially effective and comprehensive coverage of the USSC's decision last week to make its new crack sentencing guideline retroactive.  This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful "Reader-Friendly" Version of Amendment on Retroactivity, which becomes effective November 1, 2011.

I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics.  I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers.

July 5, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Recommended reading | Permalink | Comments (2) | TrackBack

Friday, July 01, 2011

US Sentencing Commission makes new crack guidelines retroactive

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

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

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

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

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

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

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

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

Some recent related posts:

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

Thursday, June 30, 2011

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

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

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

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

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

Today! Historic Sentencing Commission vote on retroactivity

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

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

Monday, June 27, 2011

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

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

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

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

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

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

Friday, June 24, 2011

Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment

Big ruling on crack sentencing today from the Eleventh Circuit on an issue that has divided district courts and is starting to see numerous circuit courts weigh in.  Here is how the opinion in US v. Rojas, No. 10-14662 (11th Cir. June 24, 2011) (available here).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1).  Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law.  The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA.  After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.

On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence.  Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence.  Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109.  Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment.  We conclude that the FSA applies to defendants like Vera Rojas who had not yet been sentenced by the date of the FSA’s enactment.  The interest in honoring clear Congressional intent, as well as principles of fairness, uniformity, and administrability, necessitate our conclusion.  Accordingly, we reverse and remand to the district court for re-sentencing.

Some posts on this FSA pipeline issue:

June 24, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Thursday, June 02, 2011

Informed criticisms of Justice Department's proposed limitation on crack retroactivity

I have received feedback from a a number of informed and thoughtful folks that there are real problems with the Justice Department's proposed limits on who should get the retroactive benefits of the new lower crack guidelines (basics here).  Margaret Colgate Love gave me permission to reprint her comments on this score here:

The Justice Department's proposal to categorically disqualify from relief individuals with a criminal history score higher than 3, and anyone in a lower criminal history category whose sentence was enhanced for gun possession, would weed out upwards of 60% of those otherwise eligible for early release.  It would also reduce the projected savings by as much as 70%, since those in higher criminal history categories would potentially qualify for a much larger reduction in their prison terms.  Many witnesses [at the USSC hearing on June 1] -- as well as several Commissioners -- pointed out that criminal history category or gun bump is an imperfect proxy for dangerousness or likely recidivism.  For example, the Commission's new recidivism study of the 2007 crack releasees shows that CH 4 has a lower recidivism rate than CH 3.  Also, it can be pretty easy to get into a high criminal history category with very minor priors, and guns are frequently attributed to defendants who never touched much less fired them.

The comparatively low recidivism rates of those released under the 2-level drop enacted in 2007 in every criminal history category indicates that the judges who made case-by-case decisions under that authority did a good job of weeding out individuals who were likely to be a danger upon release.  Almost everyone who testified [at the USSC hearing] thought judges could be relied upon to make these decisions again with the smaller cohort of individuals eligible for release under the new guidelines.  As if more were needed to discredit the Justice Department's recommendation, the Acting Director of BOP departed from his written testimony to remark on the management and public safety problems that might be created by disqualifying so many prisoners from a shot at early release when they have been working hard to earn it.

Recent related posts:

UPDATE Margaret Love also passed along for posting another informed observer's reflections on the USSC crack retroactivity hearing:

As you may have heard, Attorney General Holder was the first witness.  He stated that DOJ favors retroactivity with limitations.  DOJ would exclude those in Criminal History Categories IV, V and VI, and anyone with a weapon enhancement or a weapon conviction (e.g., 924(c)). (This would be well over half of the 12,000 or so inmates that the Commission believes to be eligible.)  After he left, the US Attorney for Northern Iowa elaborated on the Department’s position in her testimony.  The Commissioners grilled her on how these limitations (especially those based on criminal history) could be so important to public safety for those already sentenced when the Department did not request them prospectively. Her answers did not seem to satisfy the Commissioners.

She also was pressed hard on a broader recommendation to the Commission that it make retroactivity even more rare in the future given that judges can always vary to account for problems that the Commission later decides to fix.  This was not well received either, partly because the same logic should have led the Department to oppose retroactivity for the FSA amendments and partly because it would require the Commission to admit that it has become nearly irrelevant in the sentencing process.

It is always hard to predict based on questions at a hearing,... but I suspect that the Commission will rely on the favorable 2007 experience to make the current amendments retroactive without exclusions.  They also seemed to see a need to clarify the circumstances when it may not be appropriate to grant a reduction (i.e., the language it now has about the general inappropriateness of a reduction if the original sentence was a downward variance under 3553(a)).  The purpose there was to avoid a double dip in those cases where the judge already applied a ratio at least as favorable to the defendant as 18:1.  Because the person best situated to know whether that will be an issue is the sentencing judge, we asked the Commission to clarify the purpose so that judges can do their jobs.  I suspect that it will.

In addition, Michael O'Hear has still more observations on the hearing at his Life Sentences blog here and FAMM's twitter feed has even more on the hearing.

June 2, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, June 01, 2011

Lamar Smith's (deeply misguided) statement about crack retroactivity debate

Via the Main Justice blog I came across a notable, and in my view deeply misguided, statement issued by House Judiciary Chairman Lamar Smith concerning today's US Sentencing Commission hearing about whether to make its new crack guidelines retroactive. Here is the statement:

“The Sentencing Commission is poised to once again overstep its role and enforce laws not as enacted by Congress, but as the Sentencing Commission believes they should be enacted.  Congress did not create the Sentencing Commission to legislate or amend the laws passed by Congress.  But that is precisely what the Commission is considering with the Fair Sentencing Act of 2010.  Nothing in the Act nor in the congressional record implies that Congress ever intended that the new crack cocaine guidelines should be applied retroactively.  And yet, the Sentencing Commission may release thousands of crack traffickers before they have fully served their sentences.

“I’m also disappointed by the Obama administration’s position supporting the release of dangerous drug offenders.  It shows that they are more concerned with wellbeing of criminals than with the safety of our communities.  This sends a dangerous message to criminals and would-be drug offenders that Congress doesn’t take drug crimes seriously.

“The members of the Sentencing Commission are unelected and therefore are not accountable to the American people.  Time and again, the Sentencing Commission has chosen to usurp the authority of Congress and impose its will on our communities.  It is time for Congress to restore accountability to our sentencing laws and ensure that the Sentencing Commission cannot continue to create law without Congressional approval.”

There are so many troubling aspects of this statement with respect to the work of the US Sentencing Commission, I am not sure where to begin.  Most critically, everything that the US Sentencing Commission does is always subject to subsequent rejection by Congress, so the notion that the USSC does lots of stuff without at least tacit congressional approval is just wrong.  More specifically, there are in fact parts to the Fair Sentencing Act of 2010 and lots in the congressional record to suggest that Congress did expect and intend that the new crack cocaine guidelines could and should be applied retroactively by the USSC. 

As for the pot-shots at the Obama Administration, this rhetoric is even worse and even more irresponsible.  As reported here, the Obama Administration's position on crack retroactivity is expressly that "dangerous drug offenders" should not get the benefit of the new lower crack guidelines.  Moreover, to assert that Justice Department is "more concerned with wellbeing of criminals than with the safety of our communities" itself sends a "dangerous message" that the House Judiciary Chair doesn’t take seriously the challenge of responsible public policy decision-making and instead has a greater interest in sound-bite demagoguery.

Recent related posts:

June 1, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 31, 2011

First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases

I am quite pleased (and a bit surprised) to be able to report this afternoon that a panel of the First Circuit today has unanimously affirmed US District Judge D. Brock Hornby important ruling in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (opinion here; blogged here), which had concluded that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well."  Here are a few notable passages from today's big circuit ruling in US v. Douglas, No. 10-234 (1st Cir. May 31, 2011) (available here): 

None of the Supreme Court cases squarely governs this case.  Two of those cases (invoked by Douglas), United States v. Chambers, 291 U.S. 217 (1934), and Hamm v. City of Rock Hill, 379 U.S. 306 (1964), overrode section 109 in problematic situations.  While the analytical explanation given in each case has little bearing on this one, the cases do suggest that some sense of the "fair" result, arguably helpful to Douglas in light of the reformist purpose of the FSA, sometimes plays a role in applying section 109. See Goncalves, 2011 WL 1631649, at *6-7.

Perhaps closer to this case from a factual standpoint is Marrero (relied on by the government); it held that Congress' creation of parole eligibility for serious drug offenders, overturning a prior statutory bar, would not apply retroactively to those serving sentences for crimes committed prior to the new statute.  Marrero, 417 U.S. at 663-64. Still, the conflict between an 18:1 guidelines sentence and a 100:1 mandatory minimum may seem to some more pronounced than making the availability of parole depend on whether the prisoner committed the crime before or after an amendment allowed parole.

Further, the imposition now of a minimum sentence that Congress has already condemned as too harsh makes this an unusual case.  It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.

Finally, while the rule of lenity does not apply where the statute is "clear," e.g., Boyle v. United States, 129 S. Ct. 2237, 2246 (2009), section 109 is less than clear in many of its interactions with other statutes, and that is arguably true in the present case as well.  Our principal concern here is with the "fair" or "necessary" implication, Marrero, 417 U.S. at 659 n.10; Great N. Ny. Co., 208 U.S. at 465, derived from the mismatch between the old mandatory minimums and the new guidelines and to be drawn from the congressional purpose to ameliorate the cocaine base sentences.  But the rule of lenity, applicable to penalties as well as the definition of crimes, adds a measure of further support to Douglas.

In addition to being very big news for many crack defendants in the First Circuit, this new Douglas ruling creates a crisp circuit split because the Seventh Circuit has come to a different view on this issue and has already rejected en banc review of its ruling that the new lower FSA minimums do not apply to not-yet-sentenced defendants.  Consequently, the oft-needed circuit split to foster SCOTUS review is now in place (and I would not be too surprised if the SG's office seeks cert from this Douglas ruling in light of the Seventh Circuit's contrary opinion).

Some posts on this FSA issue:

May 31, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack