Friday, September 03, 2010

US Sentencing Commission releases proposed amendments to implement FSA and final priorities

Though I will certainly need the long weekend to consume and assess and comment on all of the new materials that emerged this week from the US Sentencing Commission, I wanted to spotlight these important new USSC documents ASAP.  So, here are the titles and descriptions of all the new goodies just put out by the US Sentencing Commission (with links to the documents referenced):

Proposed Amendment and Issues for Comment: Fair Sentencing Act of 2010: The Commission is seeking comment on its emergency, temporary proposed amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111–220). The Act was signed into law on August 3, 2010, and requires the Commission to promulgate its emergency, temporary amendment (pursuant to section 21(a) of the Sentencing Reform Act of 1987 (28 U.S.C. § 994 note)) within 90 days, i.e., not later than November 1, 2010. Public comment is due [30 days after publication in the Federal Register].

"Reader-Friendly" Version of Proposed Emergency Temporary Amendment and Issues for Comment: Fair Sentencing Act of 2010: This compilation contains unofficial text of the proposed emergency temporary amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111-220). Official text will appear in an upcoming edition of the Federal Register.

Notice of Final Priorities: In July 2010, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2011. (See 75 Fed. Reg. 41927) After reviewing the public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these priorities.

September 3, 2010 in Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, August 09, 2010

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

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

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

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

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

Tuesday, August 03, 2010

Fair Sentencing Act about to alter crack sentencing ... with lots of transition issues to follow

As noted in this new Washington Post editorial, President Obama is expected to sign the Fair Sentencing Act of 2010 into law on Tuesday.  As detailed in prior posts, the FSA reduces somewhat the disparity between crack and powder cocaine sentencing in mandatory minimums, it is not entirely clear how the US Sentencing Commission will adjust impacted sentencing guidelines or what cases in the pipeline will be effected by the revisions in the Act.

I imagine there will be unique the transition issues for those indicted but not yet convicted, as well as those convicted but not yet sentenced, under the old law.  In addition, we will have only 90 days to wait for new guidelines from the US Sentencing Commission as well, which presents a host of related transition issues.  Rather than spot the possibilities, I encourage readers to use the comments to note the transition issues they expect to be raised and litigated most frequently after the Fair Sentencing Act becomes law later today.

UPDATE:  Here is a brief USA Today piece on the FSA's signing, which is headlined "Obama signs law targeting disparities in cocaine cases." Here is an excerpt:

President Obama signed a law today designed to change the way that crack and powder cocaine are handled in court. The Fair Sentencing Act is "a bipartisan bill to help right a longstanding wrong by narrowing sentencing disparities between those convicted of crack cocaine and powder cocaine," Obama said last week in a speech to the National Urban League. "It's the right thing to do."

August 3, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (17) | TrackBack

Friday, July 30, 2010

"The slow fade of Len Bias' ghost"

The title of this post is the headline of this commentary in today's Dallas Morning News by Mark Osler. In addition to providing a useful reminder of the way the 100-1 crack/powder ratio came to be, it also ends with a fitting summary of where we are now. Here is how the piece starts and ends:

Twenty-four years ago, a talented young player from the University of Maryland was drafted No. 2 overall by the Boston Celtics. Two days later, he was dead of a drug overdose.

This simple tragedy led to one of the most frivolous detours in American history – the onerous federal sentencing statute for crack, which was finally amended by Congress on Wednesday. The story of Len Bias is a wonderful example of the potential dangers of legislation based on anecdote rather than study and analysis....

It is pathetic that it took 24 years to fix this problem. It is also disheartening that this legislation applies only to future cases and does not change the sentences of those already in prison. Still, it is change for the better. It is rare to reverse the ratchet on criminal sentences, and, in amending the rules on crack, Congress has finally begun to undo the hasty and untoward effects of Len Bias' ghost haunting the halls of government.

Some recent related posts:

July 30, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, July 29, 2010

A few not-so-accurate headlines about Congress's work on crack sentences

One can find lots and lots of effective traditional media coverage of yesterday's work by Congress to finally pass a bill to reform crack mandatory minimum sentencing provisions (basics here).  However, in looking over some of the headlines in Google news, I saw a few that were a bit misleading:

As informed readers know, Congress has only reduced the crack/powder disparity in the Fair Sentencing Act of 2010, it has not eliminated the disparity.  Also, in my view, it is not accurate to call what Congress has done will bring "big changes" to crack sentencing.  I see the FSA of 2010 as more of a tweak than a big change, and a lot of the long-term impact will depend on how the US Sentencing Commission makes corresponding changes in the crack guidelines.

This effective commentary by Chris Weigant over at the Huffington Post, which is headlined "Cocaine Sentencing Injustice Slightly Lessened," describes the reality of the statutory changes and also captures many of my feelings about these sentencing developments.  It ends this way:

This is landmark legislation, I realize.  Moving away from the "lock them all up" mentality, for politicians, is remarkable simply because it does not happen often (read: "ever").  Backing down on Draconian drug laws is not exactly atop the priorities list of many politicians, because the ads attacking them for doing so just about write themselves.  So I do applaud Congress for addressing the issue (both houses have now passed the bill).

But, at the same time, what they've done is to change the ratio of unfairness from one-hundred-to-one (500:5) down to roughly eighteen-to-one (500:28).  The penalties for crack and powder cocaine are still nowhere near parity.  Someone possessing an ounce of crack will get a much stricter punishment than someone possessing a full pound of powder cocaine.  It's as if we decided to make coffee illegal, and instituted mandatory minimums for possessing five cups of coffee -- while at the same time applying the same penalty only if you were caught with 500 cups of espresso.  Or made water illegal, but set a much higher bar for possessing 500 ice cubes.  Either way, it is the same substance.  The only thing which differs is the penalty for the "lower class" version of the substance.

Meaning that even the newly-passed bill is not exactly an exercise in equality under the law. Not by a factor of eighteen.  President Obama, to his credit, called for true fairness on the campaign trail, when he said that the disparity in crack/powder cocaine punishment "cannot be justified and should be eliminated."  He was right.  It should be eliminated.  Either start jailing a lot more suburban white kids (which would cause its own kind of outcry), or stop jailing inner-city folks disproportionally.  Lower the bar for powder, or raise the bar for crack, in other words, until the penalty is equalized.

While Congress did not have the courage of their convictions to do so this time around, they did take a baby step in the right direction.  This is momentous, because it is the first such step in this direction in three or four decades.  But I still can't help but wish that Congress had tackled the problem not in such an incrementalist political fashion, but rather as an issue of rank inequality to be rectified by removing all of the legally-codified unfairness at once -- to restore the concept of equal treatment under the law, rather than perpetuating (if slightly lessening) the inherent injustice which still exists.

July 29, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19) | TrackBack

Wednesday, July 28, 2010

Questions and more questions as a reformed crack bill heads to the President's desk

As reported here, the House of Representatives, by voice vote, finally approved the compromise federal sentencing bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature.   Here is the text of the bill known as the Fair Sentencing Act of 2010 ("FSA"), and the folks at FAMM have this terrific resource page providing lots and lots of information about the bill and its potential impact.  But I still have lots and lots of questions as the bill head's to the President's desk:

1.  Will the US Sentencing Commission be able to make all the needed follow-up amendments no later within the 90 days reguired by the FSA?

2.  How many crack sentencings have been put on hold awaiting the expected passage of this bill and should they stay on hold while the USSC works on the emergency amendments?

3.  Will defendants who have already been sentenced for crack offenses find any ways to get any retroactive benefit from the FSA and/or the USSC amendments to follow?

4.  Does the passage of this bill (and also yesterday's House passage of the National Criminal Justice Commission Act) suggest we have finally hit a tipping point in the war on drugs and/or the tough on crime era?

I could go on and on, but I suspect readers may have some additional question to add to the mix.

July 28, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (3) | TrackBack