Sentencing Law and Policy

Op-ed on "Crack-cocaine sentencing injustice"

Professor Mark Osler has this new op-ed titled "Crack-cocaine sentencing injustice."  Here are snippets:

By 1995, hundreds of African-Americans had been prosecuted for crack offenses, but relatively few whites. In 1993, for instance, over 88 percent of the mandatory minimum sentences for crack were imposed on blacks. Aside from the obvious racial disparity, the law did not seem to be doing its job of deterring crime. The crack epidemic expanded at the same time as the prison population. Part of the problem with the 100:1 ratio was that it was an incentive to sweep up the members of a drug conspiracy who were most easily replaced....

For nearly two decades, the 100:1 ratio was part of mandatory minimum sentences and the federal sentencing guidelines.  However, recently the 100:1 ratio finally was bent back toward reasonableness. First, the United States Sentencing Commission modified the federal sentencing guidelines. It reduced sentences for crack cocaine relative to powder, but still provided stiffer sentences for crack.  Next, the Supreme Court ruled that judges could depart from the 100:1 ratio if they disagreed with it on policy grounds.  Finally, the Sentencing Commission decided that the changes in the crack law would apply retroactively....

Even after these long-overdue changes, one voice cried out in support of maintaining the 100:1 ratio. That was Attorney General Michael Mukasey.  Despite the near-uniform urging of experts that the ratio be changed, Mukasey urged Congress to reverse the Sentencing Commission’s decision.

Some recent related posts:

• House hearing Tuesday on crack sentencing disparity
• AG Mukasey comes out swinging on crack retroactivity
• Mukasey's crack testimony and reactions from public policy groups
• Division in the Justice Department over crack retroactivity
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• Interesting new op-ed on crack sentencing and clemency
• Latest FSR issue covers crack sentencing

House hearing Tuesday on crack sentencing disparity

As detailed on this official webpage, the House Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing tomorrow afternoon titled "Cracked Justice – Addressing the Unfairness in Cocaine Sentencing."  I have no idea who is scheduled to testify, though I suspect all the usual suspects will be out in force.

Indeed, this webpage at the Sentencing Project explains that tomorrow has been declared a special day in the legislative battle:

“My community has experienced the harm caused by drug abuse,” said Howard Saffold, a former Chicago police officer and participant in the “Crack the Disparity” Lobby Day cosponsored by The Sentencing Project. “We need services to treat people who are addicted to crack cocaine and employment opportunities for the young men who have, for various reasons, chosen to sell it. Excessive prison terms do not address the real problems.”...Saffold and 50 other community leaders from around the country will attend today's hearing before the House Judiciary's Subcommittee on Crime, Terrorism and Homeland Security and urge their representatives in Congress to push through crack cocaine sentencing reform this year.

The “Crack the Disparity” Lobby Day is sponsored by: American Bar Association, American Civil Liberties Union, Break the Chains, Drug Policy Alliance, Families Against Mandatory Minimums, National Association of Criminal Defense Lawyers, Open Society Policy Center, The Sentencing Project and United Methodist Church.

Another press release concerning the House hearing is available from the Drug Policy Alliance.

Though I am very pleased to see all this energy devoted to an important and highly symbolic issue, I fear that the current Congress is going to little serious interest in moving ahead with serious sentencing reform during this election year.  I feared this was true even before AG Mukasey came out swinging against the modest changes enacted by the US Sentencing Commission last year.  And the fact that all the major candidates seem eager to avoid too much discussion of crime and punishment issues sees to me to largely ensure that 2009 is the earliest that anyone should expect real reforms to have a chance to move forward.  But that's just my gut instinct, and I have been surprised by sentencing politics before and surely will be again in the future.

Some recent related posts:

• AG Mukasey comes out swinging on crack retroactivity
• Mukasey's crack testimony and reactions from public policy groups
• Division in the Justice Department over crack retroactivity
• A retroactive litmus test on leading Democratic candidates
• Is Senator Clinton to the right of Justice Scalia on sentencing issues?
• Race, class and criminal justice in campaign 2008
• How the media can do better: ask the candidates tough crime and punishment questions
• Interesting new op-ed on crack sentencing and clemency
• Latest FSR issue covers crack sentencing

Examining realities of crack sentencing reform

USSC Commissioner John Steer and attorney Mark Allenbaugh have this new Findlaw piece, titled "The State of Federal Cocaine Sentencing Policy: Will Congress Soon Finish What the U.S. Sentencing Commission Started?".  Here is how it ends:

[T]he Justice Department is rightly concerned about public safety, and a greater emphasis on re-entry programs is welcome.  Congress, therefore, should carefully monitor developments.

The Sentencing Reform Act of 1984 envisioned a very limited, well-regulated remedial process in which judges make their sentence reduction decisions within parameters set by the Sentencing Commission. In the wake of U.S. Supreme Court decisions granting greater judicial sentencing discretion, there may be a tendency for some to exceed intended boundaries in these special, limited-purpose retroactivity proceedings. If that becomes a significant problem, Congress should determine if remedial legislation is warranted.

Finally, Congress also needs to fully understand that a more complete, just resolution of the entire crack/powder excessive disparity issue is now squarely in its hands and urgently needs prompt legislative action.  As Commission Chairman Judge Ricardo Hinojosa recently testified before the Senate Judiciary Committee, "[t]he Commission believes that there is no justification for the current statutory penalty scheme for powder and crack cocaine offenses," and "the Commission is of the opinion that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties and therefore must be legislated by Congress."

Is crack reform to be subject to bargained justice?

The Washington Post has this intriguing little item suggesting a crack sentencing reform deal could be in the works:

Congress could limit the early release of crack cocaine offenders as part of a possible deal with the Bush administration to reduce a disparity in cocaine sentencing, a leading Democrat said yesterday.

Sen. Joseph R. Biden Jr. (Del.) said there is growing support in Congress for revising a 22-year-old law that sets far harsher federal penalties for crack cocaine than for powder cocaine.  A Justice Department willingness to reduce the disparities and revise a mandatory minimum sentence for crack possession makes a deal possible, Biden said. He said he could consider in return the Bush administration's plea to limit a pending release of crack offenders whose sentences were cut by the U.S. Sentencing Commission.

"I'm willing to consider a compromise [as long as] . . . there's a significant change relative to disparities, a significant change relative to minimum mandatory, and in return for that I'm willing to talk about a meaningful change in retroactivity," Biden said after a hearing of the Senate Judiciary subcommittee he chairs.

I would be very surprised if this kind of deal becomes a legislative reality anytime soon, but it is really interesting that this sort of deal-making is being openly discussed.

Some recent related posts:

• Gearing up for today's Senate crack hearing
• Report on Senate crack hearing

Gearing up for today's Senate crack hearing

All the usual suspects have useful information on their website in anticipation of today's afternoon Senate hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity."  The Sentencing Project has this new webpage with links, and FAMM has this page analyzing some various crack sentencing reform bills that have been put forward.  In addition, CQ Today has this effective article about all the current crack wackiness.  Here is how the piece starts:

A Tuesday hearing before a Senate Judiciary subcommittee is just the latest front in a widening battle between Democrats and administration officials over federal sentencing guidelines for crack cocaine offenses.

What’s up next?  One possibility is legislation designed to block recent action by the U.S. Sentencing Commission — action that effectively reduces sentences for crack cocaine offenses.  That legislation may not go very far.  But the escalating torrent of incendiary rhetoric designed to maximize political gain could have more far-reaching effects — especially in an election year.

The CQ Today article effectively highlights the interesting — and highly unpredictable — political stories surround this Senate hearing and the broader sentencing issues that it raises.  In an election year in which very few folks inside the Beltway have few strong political talking points, I won't be surprised to see a return to "tough-on-crime" rhetoric coming from both sides of the ailse.  However, given the economic and human costs of the legislation that this rhetoric has produced — as highlighted by my last three posts about Idaho reforms and Sargeant Lett and the pardon power — this kind of rhetoric may not be as politically effective as it once was.  At least that's what I am hoping, and this Senate hearing may well provide a very interesting window into how both parties are thinking about crime politics for November 2008.

Proof that the politics on these issues are changing comes in part from this new Washington Times editorial, titled "Reforming crack-cocaine law," authored by J.C. Watts and Asa Hutchinson.  Here is how it starts:

Both of us are former Republican congressmen; one of us is the former head of the Drug Enforcement Administration; and neither of us has ever been accused of being "soft on crime." That is why some may find it surprising that we respectfully disagree with our attorney general with regard to federal sentencing guidelines on crack and powder cocaine.  Simple standards of fairness call for the attorney general to support the recommendations of the U.S. Sentencing Commission, which reduce the disparity of sentences and make the changes retroactive.

Some recent related posts:

• Crack debate becoming really whack really quickly
• Mukasey's crack testimony and reactions from public policy groups
• NY Times and NAACP speak out against the AG on crack retroactivity
• Division in the Justice Department over crack retroactivity
• More on Mukasey on crack: is the best defense is a good offense?
• Mukasey talking (seriously?) about pushing legislation to undo crack retroactivity
• Bill introduced to overturn USSC's crack retroactivity decision
• A retroactive litmus test on leading Democratic candidates
• Official USSC press release on crack retroactivity
• Some legal particulars around crack retroactivity implementation
• FSR issue covers crack sentencing

Helping the federal judiciary (but not private lawyers) with crack retroactivity

A self-described "friend of the blog" sent me the following e-mail:

I thought that you might be interested in the programs that the Federal Judicial Center is developing for the District Courts. The e-mail announcing the programs is set out below. I believe all of the programs are accessible only through the judiciary's intranet website or TV network.

To All District and Magistrate Judges:  I am pleased to announce the availability of three Center initiatives that may be helpful in applying the new Sentencing Guideline pertaining to crack cocaine convictions.

1. An FJC Online web resource: the Crack Cocaine Retroactivity Guideline Information Exchange.  The Federal Judicial Center is providing this resource in response to the need for a central location for judges, chief probation officers, district court clerks, senior staff attorneys, and federal defenders to share information and resources concerning policy, practical application, and local procedural issues.  You can search the Exchange by topic, add your own topics, pose questions, and offer answers to others.  Links to relevant websites are included.  You can also post documents and reference materials. The Exchange is also available through the FJC Online home page at http://cwn.fjc.dcn.

2. An FJTN broadcast, Using BOP Sentry Reports to Evaluate Sentencing Reductions, a 30-minute live program on Thursday, February 7, at 1:00 p.m. EST.

3. An FJTN broadcast, Sentencing in Federal Courts: Applying Gall, Kimbrough, and the New Cocaine Guidelines, which has been rescheduled to debut on February 27 at 3:00 p.m. EST.

E-mails announcing the availability of the Exchange and the FJTN broadcasts have been sent to chief probation officers, district court clerks, senior staff attorneys, and federal defenders.

Barbara Rothstein, Director, Federal Judicial Center

Of course, I am pleased to see so may efforts afoot to help with implementing the new crack guidelines.  But I am disappointed (and getting grumpy) that private attorneys and academics and other non-federal-employees (like me) are being shut out from these significant resources.

Senate crack/powder sentencing hearing later this month

As detailed in this official hearing notice and in this FAMM webpage, the U.S. Senate Judiciary Committee, Subcommittee on Crime and Drugs has scheduled a hearing for the afternoon of Tuesday, February 12 titled "Reforming the 100-to-1 Crack/Powder Disparity."  As FAMM notes, "three bills have been introduced in the Senate and will likely be the subject of debate at the hearing."  What FAMM does not note is that it seems pretty unlikely that any of these bills will go anywhere in an election year.

The witnesses for the hearing have not been announced, though I would guess the usual suspects on this issue (with the usual advocacy positions) will be showcased.

Notable new defender resources on crack retroactivity implementation

Over at the Crack Cocaine Guideline Amendment resource page of the Office of Defender Services website I just saw a bunch of interesting new resources discussing the implementation of the new crack guidelines retroactively.  Here are the new materials that really caught my eye:

• Effective, Efficient, and Fair Implementation of the Retroactive Amendment (January 14, 2008)
  Federal Defender Sentencing Guidelines Committee
  This memorandum was prepared for distribution to participants at the Crack Amendment Retroactivity Summit held January 17-18 in Charlotte, N.C. It expresses the Defender community’s views with respect to (1) the right to counsel in crack retroactivity cases, and (2) the right for the defense bar to have equal access to the names of those who may benefit from retroactive application of the crack guidelines.

• Providing Counsel to All Potentially Eligible Beneficiaries of the Retroactive Crack Guideline Amendment Makes Sense and is Constitutionally Required
  by National Federal Defender Sentencing Resource Counsel
  This memorandum argues, contrary to positions taken by the Department of Justice and the Sentencing Commission, that defendants have a right to counsel in crack retroactivity cases under the Sixth Amendment and Due Process Clause.

• Selected Retroactivity Caselaw
  by National Federal Defender Sentencing Resource Counsel
  This memorandum was prepared for distribution to participants at the Crack Amendment Retroactivity Summit held January 24-25 in St. Louis, MO.  It addresses many issues that may arise in crack retroactivity cases, and provides caselaw and other support for a variety of arguments defense counsel may raise in handling such cases.

Viginia is (not) for (crack) lovers

This new article from US News & World Report, headlined "Releasing Crack Convicts Early: The first batch of convicted crack cocaine dealers will getting out this year, and Virginia will feel the brunt," spotlights the local quality of the (purportedly uniform) federal sentencing system.  Here are snippets:

[N]o place in the country will feel the impact of the [crack guideline] changes more than the Eastern District of Virginia, which has 7 percent — 1,404 cases — of the nation's 19,500 individuals impacted by the new guidelines.  That is nearly double the amount in the next highest areas, the middle district of Florida and the district of South Carolina.

How this stretch of Virginia, which runs from the border of Washington, D.C., through Richmond and Norfolk, came to host more most federal crack cocaine cases than any other district has little to do with the prevalence of drug trafficking. Rather, the disproportionate share of affected individuals serves as an example of how the politics of criminal justice is always local....

Frustrated that local prosecutors treated crack cases as only misdemeanors, the U.S. Attorney's office began working with local law enforcement to prosecute them on the federal level, where mandatory minimum sentences make jail time much longer.... The choice to prosecute under federal law angered some federal judges and defense attorneys who felt smaller dealers overburdened the federal system....

The result was soon clear. By 1993, the Eastern District of Virginia had the fourth-highest number of crack cocaine cases in the nation, then 114....  It's a pattern hardly unchanged to this day.  In 2006, the Eastern District of Virginia topped the nation in crack cocaine prosecutions with 253 — a sign that crack dealers will continue to face heavy enforcement in the region.  And Chuck Rosenberg, U.S. Attorney for the Eastern District of Virginia has no regrets. "It's a federal crime, so I don't apologize for prosecuting it."

AG Mukasey talking (seriously?) about pushing legislation to undo crack retroactivity

The end of this New York Times article provides more details on Attorney General Michael Mukasey's position on crack retroactivity:

Mr. Mukasey also revealed [in a Friday news conference] that the department was considering whether legislation should be introduced in Congress to block or modify a federal sentencing commission’s decision to reduce prison sentences for crack cocaine dealers. “We need to see what the prospect is for getting legislation and on what terms,” said Mr. Mukasey, who has criticized the commission’s move since it could result in the early release of potentially violent criminals.

This effective Los Angeles Times piece provides more background on this issue and highlights that crack retroactivity reductions have already become a reality for a few offenders in Oregon:

Atty. Gen. Michael B. Mukasey told reporters Friday that the Justice Department may attempt to derail new sentencing guidelines that are expected to allow the early release of thousands of convicted drug offenders.  But that train already appears to be leaving the station. In a surprising development, federal judges in Portland, Ore., have truncated the prison sentences of five defendants convicted of crack cocaine offenses, getting a jump on controversial guidelines that are scheduled to go into effect in March.  The reduced sentences, including two ordered up in the last week, are believed to be the first in a nationwide program that could ultimately cut federal prison time for more than 19,500 convicts. One of the defendants has been released from prison, and the remaining four are in different stages of the process, said Steve Wax, the federal public defender in Oregon....

The attorney general has been unusually outspoken about the possible effect of the reduced crack cocaine sentences.... "Many of those [defendants eligible for release] were involved in violence, and can be expected to continue after they get out," he told reporters. He added that he was especially concerned that inmates released unexpectedly early would not receive the normal job training and drug treatment offered to offenders before their release. "None of that will have happened, or a lot of it will not have happened, by the time some of these folks get out," he said. "And that's a cause of anxiety."

Wax, the public defender in Portland, said the system there appeared to be handling the cases with care, reflecting the close cooperation of local judges, prosecutors, probation officers and public defenders.  Two of the five prisoners granted sentence reductions, he said, were sent to halfway houses to serve some of their probationary time before their release into the community. One defendant is being deported; another was transferred from federal to state custody to face other charges.  He said the inmate who was released was originally sentenced to 18 months in prison for distributing a small amount of crack.

I was not aware of these interesting Oregon developments, and I hope to blog more about them if/when I get additional information.  Meanwhile, it seems clear to me that AG Mukasey is not seriously interested in a legislative fight over this issue right now: it's unlikely, despite Senator Hillary Clinton's misguided opposition to crack retroactivity (details here and here), that a bill rejecting the new guidelines' retroactivity could secure passage in a Democratic Congress anytime soon. 

I suspect AG Mukasey is now being "unusually outspoken" primarily to influence federal district judges as they consider motions for crack sentencing modifications.  As the AG knows, no defendant will get a reduced sentence without judicial approval.  During the post-Booker period, tough talk by DOJ has led judges to be particularly cautious about lenient sentences that might become "tough-on-crime" political talking points.  I suspect that the AG and main Justice hope that tough talk about going to Congress might make it easier for local federal prosecutors to oppose sentence reductions in individual cases.

Some related posts on the practicalities and politics of crack retroactivity:

• AG Mukasey makes ugly cracks about crack retroactivity when announcing new crime initiative
• Fascinating (and first?) crack retroactivity opinion from SDNY
• Important memo analyzing crack retroactivity issues
• Local perspective on implementing crack retroactivity
• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• Some legal particulars around crack retroactivity implementation

• A retroactive litmus test on leading Democratic candidates
• Reflections on crack sentencing reform realities
• FSR issue covers crack sentencing
• "Give them McDeath, not McLiberty"
• Seeking to clear up Clintonian confusion on crack retroactivity
• More questions about Clinton's opposition to crack guideline retroactivity
• Bill introduced to overturn USSC's crack retroactivity decision

AG Mukasey makes ugly cracks about crack retroactivity when announcing new crime initiative

As detailed in this official DOJ statement, in "a speech before the U.S. Conference of Mayors, Attorney General Michael B. Mukasey today announced the President is seeking $200 million in funding for a new Violent Crime Reduction Partnership Initiative for Fiscal Year 2009." 

I am very pleased to hear that the Administration is going to focus crime-fighting energies and monies on violent crimes.  However, I was very troubled to see from this Reuters report that AG Mukasey could not resist taking a silly swipe at the US Sentencing Commission's crack retroactivity decision.  Here's are excerpts from the Reuters article:

A pending early release of hundreds of crack-cocaine dealers whose sentences have been judged unfairly harsh threatens to cause more crime in U.S. cities, Attorney General Michael Mukasey warned on Thursday.  But some mayors said Mukasey was exaggerating the threat and described the real problem as a lack of federal assistance for programs aimed at helping ex-convicts return to society.

Mukasey told the U.S. Conference of Mayors about 1,600 convicted criminals — "many of them violent gang members" — may be released as early as March under a decision by the U.S. agency that sets sentencing guidelines for federal crimes. "A sudden influx of criminals from federal prison into your communities could lead to a surge in new victims with a tragic but predictable result," Mukasey said.

But Kevin Burns, the mayor of North Miami, Florida, said Mukasey seemed to be "striking fear" and it was most likely that only non-violent offenders would be released early. "I think it was possibly overstating it a bit," Burns told Reuters after the speech....

Some mayors said they agreed with reducing cocaine sentence disparities but shared concerns over early releases. The biggest problem is a lack of programs to help ex-convicts, Bridgeport, Connecticut, Mayor Bill Finch said.  "A lot of these people feel like society has thrown them on the trash heap," he told Reuters. "The more we get tough on crime, the more we fill these prisons up, the more we create a balloon at the end that becomes the cities' problem."

Mukasey acknowledged a need for education, job training, drug treatment and housing to help ex-offenders, but said these may be unavailable for the early-release crack prisoners.  "We need time to develop all of that and roll it out, time that blanket retroactivity might not allow us," he said.

It is a telling and disappointing reality that city mayors better understand and talk more responsibly about federal sentencing realities than does the Attorney General.  The USSC's new crack rules are carefully structured to avoid early release of offenders likely to endanger public safety and they do not amount to "blanket retroactivity."  Moreover, the USSC has been seriously discussing — with a DOJ official a part of the discussion — crack reform for more than a year and the serious prospect of some early releases has been well-known since at least May 2007.  If DOJ would get serious about real solutions instead of scaring folks about unreal problems, perhaps it would have the time that AG Mukasey says he needs.

Jeralyn at TalkLeft here and the folks at FAMM justifiably assail AG Mukasey for fear mongering.

UPDATE:  Friday's Los Angeles Times has this effective article about AG Mukasey's crack comments, including lots of appropriate and critical analysis of the AG's assertions:

The bleak assessment offered by Mukasey was challenged by inmate advocacy groups, public defenders, judges and even some of the big-city mayors listening to his remarks.  "In the grand sweep of the nation's criminal justice system, the release of this minuscule number of prisoners will not affect crime rates.  It will, however, significantly improve the perceived fairness of our federal criminal justice system," said Paul Cassell, a professor at the University of Utah law school.

Cassell -- a former federal judge who led a policymaking arm of the federal courts that supported the sentence reductions -- noted that no prisoner would be released under the program unless a judge decided the inmate was no longer a threat to the community.  "All of these prisoners were going to be released in the future," Cassell said, "so the retroactivity provision simply provides a slight acceleration of their release date."

The number eligible, equal to about 10% of the federal prison population, amounts to the most sweeping act of federal clemency in history.  But it is a small fraction of the inmates released from state and federal prisons every year.  "About 700,000 people are coming out of prison this year, many of whom were convicted of a violent offense. So now the change means we'll have 701,600 instead. Seems like he's kind of missing the point," said Marc Mauer, executive director of the Sentencing Project, an inmate advocacy group in Washington.  Mauer said that the criticism "is really an insult to the judges."

Mukasey himself was a federal judge for 18 years before retiring in 2006.

"I think [Mukasey] is wrong," said Michael Nachmanoff, the federal public defender for much of Virginia. "First, the number of people getting out in March may be much lower, and second, probation and the courts are more than capable of supervising these individuals."

Seeking reports from the "crack amendment retroactivity summit"

I mentioned in this post that I had heard reports of USSC involvement in seminars intended to help lawyers better understand what's going on with implementing the new crack guidelines retroactively.  Thanks to a helpful reader, I have now learned about a multi-day "Crack Amendment Retroactivity Summit" taking place in Saint Louis starting tomorrow.  The event is noted at this website, where one can find this draft agenda.

Disappointingly, I do not see any mention of this "Summit" on the US Sentencing Commission's official website, even though the draft agenda indicates that USSC staff members are playing an integral role in this event.  Moreover, the event website has this somewhat ominous note in bold type:

Please note: This Summit is limited only to Government Officials, such as Federal Judges and their Court Clerks, U.S. Attorneys and Assistants, Federal Defenders, U.S. Probation Officers, Bureau of Prisons staff, Sentencing Commission officials, Department of Justice personnel, U.S. Court Clerks or designees, and U.S. Marshals.  Proper identification will be required for registration at the hotel and attendance at the sessions.

Despite the fact that I and all other non-government officials are shut out for this summit for some reason, I am hopeful that the select group allowed to get up to speed on crack retroactivity in Saint Louis might share some of their learning (and materials) from this summit ASAP.

More crack retroactivity action (and related questions)

Over at the Second Circuit Sentencing Blog, Harlan Protess reports here on another New York district court opinion gearing up for crack retroactivity, this time from Judge Sifton in the EDNY.   The opinion in US v. Wood, No. CR-88-0723 (CPS), 2008 WL 163694 (EDNY Jan. 15, 2008), seeks a response from the government today, and I hope to post any notable brief that comes my way.  Here is how Harlan reacts to what's going on in his legal backyard:

This is the second in a now growing trickle of retroactivity motions, and the second time an offender likely will be eligible for immediate release upon the effective date of retroactivity. Motions of this sort raise a whole host of questions. From the public's perspective, will the naysayers and politicians who opposed retroactivity use individuals like Wood as poster-boys for the release of convicted felons onto the streets?  Will that cause any public backlash? From the prosecutor's perspective, will U.S. Attorneys Offices nationwide be clogged with motions like that filed by Wood that will require responses from individuals who likely were not involved in the original cases?  Will they be able to find the files from cases years ago?  Can they handle the volume?

While Harlan is focused on these case-specific concerns, I am curious how some of the system-wide actors are gearing up for crack retroactivity March madness.  Has the Justice Department issued internal guidance to local US Attorneys concerning how to respond to these issues?  Has the US Sentencing Commission prepared any new materials to help courts and litigants?  The USSC website does not seem to have any new crack retroactivity materials, though I have heard reports of USSC involvement in (public?) seminars intended to help lawyers better understand what's going on. 

(As noted before, the folks at the Office of Defender Services has made available this impressive and important 23-page memorandum that seeks to provide "a comprehensive analysis of issues that may arise in the retroactive application of the crack cocaine guideline amendments."  But this memo, dated Jan. 2, is now already a bit dated and provides only on perspective on implementing crack retroactivity.)   

Some recent related posts:

• Fascinating (and first?) crack retroactivity opinion from SDNY
• Important memo analyzing crack retroactivity issues
• Continued crack coverage ... but to what effect?
• Local perspective on implementing crack retroactivity
• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• Some legal particulars around crack retroactivity implementation

Important memo analyzing crack retroactivity issues

Thanks to the folks at the Office of Defender Services, this website now has made available this impressive and important 23-page memorandum that seeks to provide "a comprehensive analysis of issues that may arise in the retroactive application of the crack cocaine guideline amendments."  The memo is dated January 2, 2008, and was authored by the National Federal Defender Sentencing Resource Counsel.  Key topics covered in this memorandum include:

1. the right to counsel
2. the right to a hearing, and the right for the defendant to be present
3. the right to a full resentencing in accord with Booker v. United States
4. obtaining early release for defendants eligible for release before March 3, 2008
5. retroactive application of the amendments in special cases, including career offender and Armed Career Criminal cases.

Continued crack coverage ... but to what effect?

Valuably, the US Sentencing Commission recent work lowering the crack guidelines sentencing ranges and the Supreme Court's Kimbrough decision continue to generate media stories about the inequities in federal drug sentencing.  This AP article, for example, spotlights the continued 100-to-1 ratio reflected in crack and powder cocaine mandatory minimum sentencing terms even though, according to Nora Volkow, director of the National Institute on Drug Abuse, there is "no scientific justification to support the current laws."   

Similarly, this morning's Los Angeles Times has this lengthy article headlined "Chipping at tough crack sentencing: Laws were ineffective and the drug's ravages overblown, experts say."  The piece does a very effective job documenting the history crack-powder sentencing disparities, but then note the political problems that have continued to impede significant reform:

"I thought, 10 years ago, as the [crack] issue lost its prominence, one would see more rational decision-making," said Peter Reuter, professor of public policy at the University of Maryland and co-director of the drug policy research center at RAND. Instead, he said, "the issue lost its saliency," and "politicians lost interest."...

Despite relaxation of the guidelines, people caught with crack cocaine still will face long prison terms. Congress so far has refused to retreat from the "mandatory minimum" laws that require prison terms of at least five years for possession of crack cocaine.

But some lawmakers have been pressing for change. Calling it "a terrible flaw in the criminal justice system," Sen. Joseph R. Biden Jr. (D-Del.), a Democratic presidential candidate, proposes eliminating the 100-to-1 disparity between powder and crack cocaine. Reps. Sheila Jackson-Lee (D-Texas) and Charles B. Rangel (D-N.Y.) have introduced similar bills in the House. Sens. Jeff Sessions (R-Ala.) and Orrin G. Hatch (R-Utah) -- have proposed raising the amount of crack cocaine that would trigger a mandatory prison term.

But none of these proposals has won approval from the judiciary committees of the House or Senate. Mark Kleiman, a UCLA professor of public policy and a drug policy expert, said: "Nobody [in Congress] wants to go home and explain why they let the crack dealers out of prison."

A different story about a baseball player and drugs

Perhaps even sadder than the Mitchell Report is the story of Willie Mays Aikens's experience with a drug more troublesome than steroids. The Washington Post has this lengthy article telling Aikens's story and the possibility it will be altered by the new crack guidelines.  Here is it begins:

Willie Mays Aikens is a part of baseball lore.  As a member of the 1980 Kansas City Royals, he became the only man to hit more than one home run in two games of the same World Series. But 27 years after his feat, Aikens languishes in a federal prison in Jessup, Ga., brought low by cocaine addiction and a federal law that mandated long prison sentences for crack cocaine offenses.

From a face on a baseball card, Aikens is now a poster child for what some jurists and civil rights activists say is the absurdity of the difference between the way federal law treats people convicted of crack cocaine offenses and those found guilty of crimes involving powder cocaine.  Aikens received more than 15 years for possession of 64 grams of crack -- about the same weight as a large Snickers bar.  To receive an equivalent sentence, he would have had to possess nearly 6.5 kilos -- more than 14 pounds -- of powder cocaine.

"You can supply a whole neighborhood with 6.5 kilos," Aikens said by telephone from prison, where he is in the 13th year of his sentence. Activists, lawyers and many federal judges say cases such as Aikens's demonstrate the inequity of cocaine sentencing laws and validate the U.S. Sentencing Commission's recent decision to ease prison time guidelines for crack offenders. The new guidelines will apply retroactively to about 19,500 inmates.

Within hours of the decision, Aikens said he was on the telephone with his lawyers, asking them to request a sentence reduction. They calculated that the new guidelines could shave nearly 2 1/2 years off his sentence. "The disparity, as far as I'm concerned, is totally wrong," said Aikens, a nonviolent offender. "This took me away from my family. My girls were 4 and 5 years old when I was sentenced. Now they're 18 and 19."

The Bush administration fought the new guidelines, saying inmate petitions would overburden the federal court system, and hardened criminals, some violent, might go free. Thousands of cases will have to be litigated again in the courts where they were heard, and "those cases are going to detract from the many cases that are already pending in overworked, understaffed U.S. attorney's offices," said Steve Cook, vice president of the National Association of Assistant U.S. Attorneys.  Commissioners said it was highly unlikely that judges would free inmates with a violent past.

Some recent related posts:

• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• Some legal particulars around crack retroactivity implementation
• USSC analysis on potential crack amendment retroactivity impact
• Reflections on crack sentencing reform realities
• Latest FSR issue covers crack sentencing

Local perspective on implementing crack retroactivity

My home-town Columbus Dispatch has this article on Ohio federal courts gearing up for implementing the now retroactive crack guidelines. Here are some excerpts:

At least 224 federal prisoners who were convicted here of crack-cocaine crimes could be released early, according to an estimate by the U.S. Sentencing Commission.  A Dec. 11 decision that allows sentences to be reduced won't take effect until March 3, but prisoners already are lining up to apply, officials said.

Phone lines have been ringing steadily with inquiries, said Steve Nolder, a federal public defender. And U.S. District Judge Gregory L. Frost said one inmate's request for early release has been on his desk since Dec. 17.

Last spring, the commission eased the sentencing guidelines for crack-cocaine offenses. On Dec. 11, it voted to make the reduction retroactive so that those already convicted could be eligible for early release.... Local judges said the change was long overdue. "It should have never been a 100-to-1" disparity, Frost said.  Decisions on how the changes will be instituted are forthcoming, but it appears an inmate must petition the court for early release, U.S. District Judge Edmund A. Sargus said....

The federal court's Southern District of Ohio, which includes Columbus, Dayton and Cincinnati, has slightly more than the national average of eligible cases. The Northern District, which includes Cleveland, Akron, Mansfield and Toledo, has 396 eligible cases -- the 12th-highest among the federal court's 94 districts.

I was intrigued by the article's assertion, apparently paraphrasing Judge Sargus, that "decisions on how the changes will be instituted are forthcoming."   Forthcoming from whom?  From the US Sentencing Commission?  From district courts through rules?  Are there folks at the Justice Department and in defender offices working on protocols for processing these motions for sentencing reductions in these crack cases?  In short, this inquiring blogger wants to know who has started working on a game plan for implementing the retroactive crack guidelines.

Some recent related posts:

• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• Some legal particulars around crack retroactivity implementation
• USSC analysis on potential crack amendment retroactivity impact
• Reflections on crack sentencing reform realities
• Latest FSR issue covers crack sentencing

Bill introduced to overturn USSC's crack retroactivity decision

As detailed in this press release from House member Lamar Smith, there is now officially a bill in Congress to overturn the US Sentencing Commission's decision to make its new crack guidelines retroactive.  Here are excerpts from the press release:

Ranking Member Lamar Smith (R-TX) [has] introduced legislation to protect American communities from convicted crack offenders.  This bill ensures that an estimated 20,000 criminals will not be released before serving their full prison sentence.

“The American people have the right to know that their homes and communities are safe from dangerous criminals and convicted crack cocaine traffickers,” stated Ranking Member Smith.  “The decision by the U.S. Sentencing Commission to apply lowered penalties for crack cocaine offenders retroactively undermines the efforts of law enforcement officials across the nation and raises serious public safety concerns.”...

“To protect the American people and combat the dangerous drug trade, we must ensure that convicted criminals remain behind bars,” concluded Smith. “This bill keeps communities safe from crack cocaine offenders by prohibiting the early release of 20,000 criminals.”

Additional members of the House Judiciary Committee joining Ranking Member Smith in sponsoring this bill include Crime Subcommittee Ranking Member Louie Gohmert (R-TX), Representatives Steve Chabot (R-OH), Howard Coble (R-NC), J. Randy Forbes (R-VA), Trent Franks (R-AZ), Elton Gallegly (R-CA), Jim Jordan (R-OH) and F. James Sensenbrenner, Jr. (R-WI).

As the press release highlights, the only supporters of this bill as of this writing are Republicans.  Indeed, with Democrats now controlling both houses of Congress, I doubt that this bill will get passed.  However, one notable Democratic Senator, Hillary Clinton, has expressed her opposition to making the new crack guidelines retroactive.  So, this bill already has the tacit support of at least one prominent Democratic Senator.  It will be interesting to see if she or someone else proposes a similar bill in the Senate and also whether this bill ever gets a hearing or serious traction in the legislative process.  Stay tuned.

Here is an abridged account of some of my prior blog coverage on this issue and its politics:

• USSC unanimously votes to make new crack guidelines retroactive...
• Official USSC press release on crack retroactivity
• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• USSC analysis on potential crack amendment retroactivity impact
• Reflections on crack sentencing reform realities
• Latest FSR issue covers crack sentencing

• A retroactive litmus test on leading Democratic candidates
• "Give them McDeath, not McLiberty"
• Seeking to clear up Clintonian confusion on crack retroactivity
• More questions about Clinton's opposition to crack guideline retroactivity
• Inside the Beltway views on crack amendment retroactivity

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

Reflections on crack sentencing reform realities

Articles today in the Chicago Tribune and the New York Times provide fitting accounts of why persons interested is significant sentencing reforms should not get too jazzed about last week's amazing federal sentencing events. James Oliphant's Tribune article is headlined "New drug rules won't crack many jail doors," and it starts this way:

When the U.S. Sentencing Commission last week reduced sentences for imprisoned crack cocaine offenders -- reversing years of policy that treated crack far differently from powder cocaine -- the Justice Department and police groups bitterly criticized the action, warning of a flood of criminals rushing out onto America's streets....

But many experts say the reality is not so dramatic.  Fewer than 3,000 prisoners nationwide will be immediately eligible for the relief.  All have already served considerable time.  Each eligible prisoner will have to petition the court for freedom -- and the Justice Department can oppose those petitions.  Few offenders with violent histories are likely to be released.

Adam Liptak's Times column is headlined "Whittling Away, but Leaving a Gap," and it starts this way:

There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.

The net effect: tinkering.  The United States justice system remains, by international standards at least, exceptionally punitive.  And nothing that happened last week will change that.

Latest crack retroactivity FAQ from FAMM

Now available and subject to regular revision at FAMM's website is this document entitled "FAQs about crack amendment retroactivity."  This 3-page document covers "frequently asked questions about the federal crack guideline amendment and its retroactive application."   Here's one of many important Q & A sections:

Q: Will the crack amendment automatically apply to all crack offenders sentenced before November 1, 2007?

A: No. Only the sentencing court can decide whether the amendment applies to the prisoner and whether the prisoner gets a sentence reduction. To obtain a sentence reduction, the prisoner must make a motion under 18 U.S.C. § 3582(c)(2) to the court that sentenced him/her.

USSC's "Reader-Friendly" version of retroactivity amendment

Now up at the US Sentencing Commission website is this notice:

"Reader-Friendly" Version of Amendments on Retroactivity Effective March 3, 2008 On December 11, 2007, the Commission voted to give retroactive effect to the recent crack cocaine amendment and adopted other modifications to the policy statement covering retroactivity. This reader-friendly text combines the text of the two amendments to policy statement §1B1.10 [Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)] and shows §1B1.10 as it will appear in a forthcoming supplement to the Guidelines Manual.

Official text of the amendments will be posted on the Commission’s website at www.ussc.gov and can be found in a forthcoming edition of the Federal Register. The amendments incorporated into this reader-friendly version of §1B1.10 do not take effect until March 3, 2008. Until that date, the court should apply §1B1.10 as it exists in the Guidelines Manual effective November 1, 2007.

"Give them McDeath, not McLiberty"

Though there will surely be lots of different political reactions to the US Sentencing Commission's crack retroactivity decision, I found this news item reporting on one reaction especially notable:

Yesterday, Congressman Patrick McHenry (R-NC-10) issued the following statement in response to the U.S. Sentencing Commission’s decision to give retroactive leniency to convicted crack cocaine abusers and dealers.....

“The bottom line is this decision will let over 500 convicted criminals loose on the streets of Western North Carolina, and, frankly, that is unacceptable,” said Congressman McHenry. “The Commission’s decision defies basic common sense, and poses a serious threat to public safety.”

I suppose, were this congressman to get a guest spot on Grey's Anatomy, he might get the moniker "McMeany." 

In all seriousness, Congressman McHenry's concerns are understandable, but my "basic common sense" tells me that the federal judges in North Carolina and nationwide will, as the USSC urges, give special attention to public safety issues before letting too many dangerous criminals loose on the streets.   

More broadly, this visceral reaction to crack retroactivity spotlights the serious possibility that some members of Congress might make a serious effort to undo the USSC's work yesterday before it becomes effective in March 2008.

Major media coverage of crack retroactivity decision

As he does so well, Howard Bashman has collected here some of the major media coverage of the US Sentencing Commission's decision to make its new crack guidelines retroactive.  The Washington Post has this front page article, which includes a number of notable quotes:

"Making the revised guidelines for crack cocaine retroactive will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release," Craig S. Morford, acting deputy attorney general, said in a statement released by the Justice Department. "These offenders are among the most serious and violent offenders in the federal system."...

"The profound reason why we should get this retroactive application is it is the right thing to do," Vice Chair Ruben Castillo said minutes before the vote.  "We should constantly strive to make sure that race plays no role in the day-to-day operation of the criminal justice system."

Commissioner Beryl A. Howell called the vote "one of the most important decisions the commission has made" during her three years of service. She noted that the panel contributed to the disparity by establishing guidelines that were even more severe than what Congress allowed for in the Anti-Drug Abuse Act of 1986....

But the change is not a "get out of jail free" card, said commissioner Michael E. Horowitz. "Not everybody is automatically entitled to this reduction," he said, explaining that federal judges, many of whom supported making the guidelines retroactive, will decide cases individually on merit....

Karen Garrison, a D.C. mother whose twin sons, both Howard University graduates whose convictions were based on witness testimony, said: "This is the first time I have really been excited about anything." Lamont Garrison's 19-year sentence could be reduced by four years, and Lawrence's sentence could be reduced by three.  Secoya Jenkins, 16, of Orange, N.J., smiled broadly and said, "I'm excited because my mom is coming home." Nerika Jenkins, 35, also convicted because of witness testimony, is serving a 19-year sentence.

"It is a remarkable day," said Marc Mauer, executive director of the Sentencing Project. "While this is only the federal system and it's a small change, it's going to resonate around the world."

Some legal particulars around crack retroactivity implementation

In