Monday, September 27, 2010

"Make new crack law retroactive"

The title of this post is the headline of this opinion piece appearing in today's National Law Journal authored by Harlan Protass and Mark Harris. Here is how it starts and ends:

Last month, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams. Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Now Congress needs to finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less....

Opportunities to rethink — and cleanly remedy — social injustices are rare. The new crack sentencing bill signed into law last month presents just such a chance, one that lawmakers should not pass over. To do otherwise is to perpetuate mistakes that have taken a generation to fix.

September 27, 2010 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (43) | TrackBack

Wednesday, September 22, 2010

Top House Republican complaining that Obama administration is not fighting drug war hard enough

As detailed in this report from The Hill, which is headlined "Republican: Obama administration fosters use of marijuana," at least one House Republican wants the Obama Administration to keep growing one part of the federal government:

Rep. Lamar Smith (Texas) accused the administration of being too lax in its enforcement of drug laws.  President Obama's drug policies are encouraging increased marijuana use, a top Republican lawmaker charged Tuesday.

Rep. Lamar Smith (Texas), the top Republican member of the House Judiciary Committee who would likely become chairman of the committee under a GOP majority, accused the administration of being too lax in its enforcement of drug laws.  "The administration is clearly sending the message that they don't think it's bad to use marijuana," Smith said on Fox News. "So they're encouraging the use of marijuana.  And that simply is not a good thing to do."

Smith blamed the administration's decision to not enforce federal laws against marijuana dispensaries in states that have legalized the drug for medicinal purposes.  Smith blamed the administration's approach on drug laws for recent statistics showing an increased use of marijuana.

"We ought to be enforcing our drug laws, not backing away from them," said Smith, who also lamented a recent revision of criminal sentencing guidelines that reduced sentencing guidelines for crack-cocaine traffickers.  Proponents of the law in both parties had pushed that reform because sentencing for crack-related drug crimes were much more severe than for similar amounts of cocaine, a disparity which fueled a racial divide in drug sentencing.

As this article highlights, a Republican take-over of the House of Representatives this fall would likely result in Representative Lamar Smith becoming the chair of the House Judiciary Committee.  And Representative Smith has long been a vocal proponent of the war on drugs and an array of other tough-on-crimes measures that have increased the severity and scope of the federal criminal justice system. 

September 22, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (17) | TrackBack

Monday, September 20, 2010

Sixth Circuit summarily (and wrongly?) decides that sentencing changes in Fair Sentencing Act not applicable to pre-change crime

At the end of a seemingly minor opinion, the Sixth Circuit today in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addresses a major issue for any and all defendants hoping to get the an immediate benefit from the new crack sentencing provisions passed by Congress in the Fair Sentencing Act.  Here is the panel's entire discussion of the issue:

On August 12, 2010 — well after this case had been fully briefed and submitted for decision — Carradine moved to file a supplemental brief, arguing that he is entitled to the benefit of a recently enacted statute, the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010).  We granted the motion and accepted supplemental briefs from both parties.

This new statute, which amends the existing law, raises the threshold for imposition of a 60-month statutory minimum prison sentence from five (5) grams of crack cocaine to 28 grams. See id. at Sec. 2(a)(2) (amending 21 U.S.C. § 841(b)(1)(B)(iii)). Carradine had 19 grams of crack cocaine, so he would be subject to the statutory minimum under the old version but not under the new. Consequently, Carradine argues that the new version of the statute should apply.

The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 (1974); United States v. Avila-Anguiano, 609 F.3d 1046, 1050 (9th Cir. 2010); United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003); Korshin v. Comm’r, 91 F.3d 670, 673-74 (4th Cir. 1996).

The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question.  We affirm the district court’s imposition of the 60-month mandatory minimum sentence.

I have provided links to the key statutory provision and Supreme Court ruling that the Sixth Circuit panel relies upon for its important (and first impression?) ruling.  I do so because I am not 100% sure that these controlling authorities must be read in the way the Sixth Circuit contends because both address criminal provisions that have been repealed.  Critically, the Fair Sentencing Act did not repeal anything, it merely amended (by raising) the trigger quantities for the application of a mandatory prison term.

Some may contend that the difference between "repealing" a criminal statute and "amending" when certain sentences apply is just a matter of semantics and that the Sixth Circuit's work in Carradine is sound.  But one need not be a pedantic textualist to appreciate that there also may be a meaningful substantive distinction between a wholesale repeal of a criminal statute and a statutory amendment that merely revise the applicability of a restriction on the discretionary authority of a judge at sentencing.

I do not mean to assert that the Sixth Circuit panel's work here in Carradine is obviously wrong.  I do mean to assert, however, that the issue is not as clear-cut as the Carradine panel opinion suggests and that, at least in my mind, this important issue merits greater discussion and fuller analysis than gets provided by the Sixth Circuit panel here.

September 20, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Local perspective on the impact of new reduced crack sentences

This local story from Indiana, which is headlined "Crack, powder cocaine nearer equal footing," provides an interesting local view on some of the consequences of the new federal sentencing laws for crack offenses. Here are excerpts:

Two months after Congress voted in favor of lowering federal sentencing guidelines again for people convicted for crack cocaine, local defendants are already seeing changes. More changes could come, though, as local officials continue to advocate for more balance between people convicted of crack cocaine possession versus powder cocaine possession.

"I think the criminal defense community is just grateful this change has occurred," Jerry Flynn, an attorney with the local Federal Community Defenders, said....

The most recent federal legislation calls for [all crack/powder sentences] to be brought down to a ratio of 18:1. Although the U.S. Sentencing Commission has not enacted that part yet, U.S. Attorney David Capp said his office in Hammond is already acting for new defendants as though it's in place.

The changes to minimum sentencing has the bigger effect, though, Flynn said, because several years ago judges were given the authority to sentence defendants outside the guidelines. Minimum sentences, however, are hard and fast.

That doesn't mean he and other public defenders won't continue to fight for more fairness, Flynn said. He wants to see the ratio brought down to 1:1, meaning they would be exactly the same for either form of cocaine. The U.S. House of Representatives had voted in favor of the equal ration, although the U.S. Senate backed the 18:1 ratio. Flynn said he was encouraged support for 1:1 was already there....

Flynn said he hopes the sentencing commission, if it can, will also make the newest changes retroactive. Part of the problem is that the newest legislation isn't clear on the issue, he said. "I know I have already started receiving questions (from defendants)," he said. "It could be extremely significant for several, several people."...

Capp said he doesn't expect the changes to affect local cases too much because so many of the cases deal with larger amounts of drugs and usually include other charges, such as carrying a weapon during a drug transaction. "(We) focus our efforts on the worst offenders, the worst of the worst," Capp said.

His office does charge for smaller amounts of drugs, though, but that could change. Because states might now actually have tougher sentences than the federal government, the U.S. Attorney's office could start partnering with local prosecutors more and let them take over those cases, Capp said.

September 20, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, September 17, 2010

Symbol and substance in crack sentencing reform

The Oakland Tribune has this lengthy and interesting new article headlined "Though largely symbolic, crack-powder cocaine law change seen as social victory."  Here are excerpts:

On Aug. 3, President Barack Obama addressed that disparity at the federal level when he signed the Fair Sentencing Act, a law that reduced the long-standing, hotly debated sentencing gap that treats powder and crack cocaine differently.  The move excited proponents of racial equality who have long argued that coming down harder on a drug chiefly found in communities of color is essentially a modern-day form of Jim Crow-era segregation and persecution.

Though the new law represents a victory for racial justice advocates, the victory may largely be symbolic. Alameda County assistant district attorney Norbert Chu points out the Fair Sentencing Act will have no impact on prosecutions under state law, which is what most police patrolling Oakland streets are there to enforce....

As for federal prosecution, street-level drug interaction is largely coincidental, U.S. attorney's office spokesman Jack Gillund said.  "While (federal) investigators may encounter street-level dealers while combating gang violence or when they are engaged in a targeted enforcement effort, they don't patrol city streets looking for drug dealers; that mission is best handled by the dedicated men and women who serve daily in local and state law enforcement agencies," Gillund wrote in an e-mail.

However, the U.S. attorney's office does prosecute both large and small cocaine-enforcement cases, and it's "impossible to predict what possible impact this change may have on the Bay Area's problems with drugs," Gillund added.

September 17, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

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