Tuesday, March 25, 2014

Great coverage of crack crimes and punishments via Al Jazeera America

I am pleased (and a bit overwhelmed) by this huge new series of stories, infographics, pictures, personal stories concerning crack crimes and punishment put together by Al Jazeera America.  Here are links to just some parts of the series:

Waiting on a fix: Legal legacy of the crack epidemic: In the 1980s, the US went to war on crack. Thirty years on, judiciary is still hooked on unfair and unequal sentencing

Documenting the ravages of the 1980s crack epidemic: Renowned documentary photographer Eugene Richards recorded the brutal realities facing communities affected by crack

'Life without parole is a walking death': Andre Badley, imprisoned in 1997 for dealing crack, could spend his life behind bars while bigger dealers go free.

A rush to judgment: In 1986, lawmakers wrote new mandatory crack cocaine penalties in a few short days, using the advice of a perjurer.

March 25, 2014 in Data on sentencing, Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Saturday, August 24, 2013

AG Holder's speech at "Dream March" stresses fairness and "equal justice" (... as federal crack prisoners keep waiting)

Gty_martin_luther_king_obama_tk_130116_wgI just got an e-mail providing this link to the text of Attorney General Eric Holder's prepared remarks which he delivered today in Washington DC as part of the "National Action to Realize the Dream March." Here are some excerpts that caught my eye (with my emphasis added):

It is an honor to be here — among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized — from the streets of this nation, to the halls of our Capitol — to advance the cause of justice.

Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law.   He assured his fellow citizens that this goal was within reach — so long as they kept faith with one another, and maintained the courage and commitment to work toward it.  And he urged them to do just that.  By calling for no more — and no less — than equal justice.  By standing up for the civil rights to which everyone is entitled.  And by speaking out — in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs — for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that’s been woven through our history since this country’s earliest days: that all are created equal....

But today's observance is about far more than reflecting on our past.  Today’s March is also about committing to shape the future we will share — a future that preserves the progress, and builds on the achievements, that have led us to this moment.  Today, we look to the work that remains unfinished, and make note of our nation's shortcomings, not because we wish to dwell on imperfection — but because, as those who came before us, we love this great country.  We want this nation to be all that it was designed to be — and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead — and by the journey that still stretches before us.

This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice — until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices.  It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law.  And it must go on until every action we take reflects our values and that which is best about us.  It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many.

The America envisioned at this site 50 years ago — the “beloved community” — has not yet been realized.  But half a century after the March, and 150 years after Emancipation, it is finally within our grasp.  Together — through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents — I know that, in the 21st century, we will see an America that is more perfect and more fair....

To AG Holder's credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed (and still believes?) that a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law.  But since that time, the Obama Administration has suggested it is content with Congress's decision to merely reduce — from 100-1 to 18-1 — the differential treatment of drug quantities for crack and powder.  Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law's reduced crack sentencing terms.

Indeed, from its initial advocacy to limit "pipeline" cases from getting the benefit of the FSA's reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department's actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013. 

Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA.  But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws.

Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:

[I dream of] the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true.  So let freedom ring from the prodigious hilltops of New Hampshire.  Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!  Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!  Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

I suppose we all need to just keep dreaming, while still stressing the "fierce urgency of now."

August 24, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (32) | TrackBack

Tuesday, July 30, 2013

New USSC data on implimentation and impact of retroactive crack guidelines after FSA

I just noticed on the US Sentencing Commission's website this new data report carrying the title "Preliminary Crack Retroactivity Data Report; Fair Sentencing Act."  This report, dated July 2013, appears to be the latest accounting of who has (and has not) received the benefit of retroactive application of the 2011 amendments to the federal sentencing guidelines for crack offenses which implemented the new 18-1 crack/powder ratio that Congress created via the Fair Sentencing Act of 2010.

Based on the information reflected in Tables 1 amd 8 of this data report, it appears that just over 7300 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA-inspired crack guidelines being made retroactive.  Significantly, this average reduction merely lowered the average crack sentence from roughly 12.5 years to just over 10 years for the group receiving sentence reductions; this means that even the new-average-lowered sentence for crack offenses were still significantly higher that the average sentences imposed for any other federal drug crimes.

For those eager to gauge the potential economic impact of FSA retroactivity, it appears that the retroactive guidelines as implemented has now saved almost 16,000 cumulative years of federal imprisonment, with a consequent savings to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration).  And for those concerned about racial sentencing dynamics, Table 5 of this data reports that more than 85% of those benefiting from reduced crack sentences have been black prisoners, demonstrating once again the historically racialized reality of federal crack prosecutions.

As I have said in prior posts, if those defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs. And it those defendants do not learn the error of their law-breaking ways, I both expect and hope they will really get the sentencing book thrown at them if ever up for sentencing again.

July 30, 2013 in Data on sentencing, Detailed sentencing data, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Friday, June 28, 2013

My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett

As regular readers likely recall, a little over a month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In my first post about the Blewett ruling, I noted that I was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA." 

A couple of weeks ago, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  Ever interested in sharing my perspectives in full glossy detail, I have spent the last few days finalizing an amicus brief on behalf of NACDL explaining my Eighth Amendment thinking and that brief was filed with the Sixth Circuit (and with the consent of the parties) this afternoon.

For those following the Blewett case or interested in FSA retroactivity arguments, I recommend reading my 15-page filing in full (and I have provided the full document for downloading below).  Here are a few passages that capture some of the themes to be found in the brief:

Through passage of the Fair Sentencing Act of 2010 (FSA), Congress significantly reduced the sentences mandated and recommended for all crack offenses (1) by raising by over 500% the quantity of crack triggering five- and ten-year minimum sentences, and (2) by ordering the U.S. Sentencing Commission to reduce all crack guideline sentences through emergency amendments to be promulgated “as soon as practicable.”  See Sections 2 & 8 of FSA.  As the Supreme Court has explained, this landmark legislation reflected Congress’ formal response to “the Commission and others in the law enforcement community strongly criticiz[ing] Congress’ decision to set” crack sentences so high relative to powder cocaine sentences and Congress having “specifically found in the Fair Sentencing Act that [each pre-FSA crack] sentence was unfairly long.”  Dorsey v. United States, 132 S. Ct. 2321, 2328, 2333 (2012).  In other words, passage of the FSA is a clear, bold and unmistakable legislative statement by our nation’s representatives that pre-FSA crack sentences were unnecessarily severe, unfair and excessively long.

While the text of the FSA provides the clearest objective evidence of the national consensus against the extreme pre-FSA crack sentencing provisions, federal practices, reflected in the work of other branches both before and after the FSA’s passage, confirm that the now-repealed 100-1 crack/powder cocaine sentencing scheme has long been rejected by all significant federal sentencing decision-makers....

It is not merely notable, but of great constitutional import, that virtually every federal criminal justice actor has in virtually every possible way acted in the last half-decade to demonstrate and vindicate the consensus view that pre-FSA crack sentences were excessively long.  Significantly, in recent Eighth Amendment cases such as Miller and Graham and Kennedy and Roper and Atkins, the Supreme Court found unconstitutional extreme sentences that were still being vigorously defended by the jurisdictions which imposed them.  Here, in sharp contrast, not only have the pre-FSA crack sentences imposed on the Blewetts been repealed by Congress, it is near impossible to find a single modern federal criminal justice decision-maker who will voice any substantive defense of the pre-FSA 100-1 crack sentencing structure.

Download Blewett Amicus NACDL

Related posts on Blewett:

June 28, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (13) | TrackBack

Friday, June 14, 2013

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA."  In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.

I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”).  The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.

Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?

Related posts on Blewett:

June 14, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, June 03, 2013

As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling

As covered via a number posts on this blog, a split Sixth Circuit panel decided in Blewett, based on Equal Protection principles, that the new lower statutory mandatory-minimum thresholds for crack offenses established in the Fair Sentencing Act are applicable in motions to reduce otherwise-final sentences for incarcerated offenders.  (The Blewett panel ruling was first discussed in this post, and further here and here.) 

As predicted in these posts, the federal government is not happy with this ruling, and late Friday it finally filed a petition for rehearing en banc.  Here is the opening paragraph of the argument section from that filing, which can be downloaded below:

The majority’s holding is legally incorrect, in conflict with prior Sixth Circuit decisions, in conflict with the law of every other circuit, and inconsistent with Dorsey.  Moreover, the effect of the decision will be widespread if it is allowed to stand.  The panel majority’s core reasoning is seriously flawed in multiple respects, but two central errors highlight the need for en banc consideration.  Download Blewett_petition for rehearing

I would be truly shocked if the full Sixth Circuit did not grant this petition for rehearing.  Indeed, in my view the only real procedural questions now are (1) how long will it take the full Sixth Circuit to grant the petition, and (2) what kind of briefing and argument schedule will be set for this important case.  (I would urge the Sixth Circuit to give plenty of time for briefing because I know that a number of public policy groups are likely to be eager to file amicus briefs in this matter.)

As I briefly explained in my first post on Blewett, I think a Fifth Amendment equal protection theory used by the majority in the Blewett panel decision provides a very shaky constitutional foundation for giving the new crack statutory sentences of the FSA retroactive effect.  But I also think, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could provide a more reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

Related posts on Blewett:

June 3, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, May 30, 2013

Two weeks later, has there been any significant and noteworthy Blewett blowback?

As first discussed in this post and further here and here, a split panel of the Sixth Circuit two weeks ago handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act's effective date.  This ruling means that still-imprisoned crack defendants sentenced in the two decades before the FSA can now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Right after the ruling there was reasonable and justified speculation that the federal prosecutors would quickly move for the full Sixth Circuit to review and reverse the Blewett decision en banc.  Indeed, I expected that we a petition for rehearing en banc would be filed within a matter of days.  But here it is nearly two weeks later, and I am still awaiting any report of a DOJ en banc filing in response to Blewett.  I believe it is still likely that such a petition will be coming down the pike very soon, but the delay so far now has me wondering and speculating as to whether the feds might just decide to seek summary reversal of Blewett in the US Supreme Court rather than just fight this consequential fight in the Sixth Circuit.

Meanwhile, though I predicted in this post that there could be hundreds, if not thousand, of Blewett claims brought by incarcerated federal crack offenders convicted within the Sixth Circuit, as of this writing I have not seen any reports or evidence of significant efforts by significant numbers of defendants to get some relief from Blewett.  I did find, thanks to Westlaw, a notable ruling by Judge Tarnow in the Eastern District of Michigan granting relief to a defendant based on Blewett in US v. Frost, No. 08–20537–4, 2013 WL 2250768 (ED Mich May 22, 2013), noting that Cecil Frost only now can get resentenced "because the Sixth Circuit Court's ruling in Blewett cures [the] unjust outcome" that precluded his resentencing because he had been sentenced before the effective date of the FSA.

It is hard to assess at this stage whether Frost represents the tip of a large Blewett-resentencing ice berg, or instead that Frost is a rare case involving a defendant and a district judge eager and able to operationalize Blewett quickly.  The question in the title of this post is an effort to seek help from practioners and others to figure out whether and how Blewett blowback might be brewing.

Related posts on Blewett:

May 30, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, May 28, 2013

DC Circuit allows suit against US Sentencing Commission for limiting crack relief to go forward

H&WIn an interesting (and ground-breaking?) unanimous panel ruling that should make fans of Henry M. Hart and Herbert Wechsler smile, the DC Circuit today ruling that a crack defendant's civil rights lawsuit against the US Sentencing Commission could go forward. The notable ruling in Davis v. US Sentencing Commission, No. 11-5264 (DC Cir. May 28, 2013) (available here), gets started this way:

Appellant Brian Davis was sentenced to prison for crimes involving powder and crack cocaine before Congress and the Sentencing Commission took steps to reduce the disparity in sentencing ranges between the two.  Unfortunately for Davis, these efforts were directed at crimes involving lesser amounts of cocaine than his.  In a suit that seeks declaratory relief and possibly damages, Davis claims that these efforts violate the Equal Protection Clause because they do not reach his crimes.  This appeal does not take up the merits of Davis’s claims, but their form.  The district court dismissed his suit on the ground that the only relief available to Davis is in habeas.  For the reasons set forth below, we reverse.

I nearly fell out of my desk chair when I read the last word of the last line of this opening paragraph, and the rest of the opinion surprised me as well.  In order to reach its conclusion, the DC Circuit panel (1) had to reverse an established circuit precedent based on intervening Supreme Court rulings and also (2) had to rule that the district court erred when concluding the claim made by Davis against the USSC was “patently insubstantial.”

In the end, because Davis v. USSC is a narrow procedural ruling, it still remains very unlikely Davis will ultimately prevail in his suit, and I also doubt that this ruling today by the DC Circuit will prove to be all that consequential.  Nevertheless, I think for Fed Court fans, as well as sentencing fans, the opinion in Davis v. USSC is today's must-read.

May 28, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, May 19, 2013

How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....

We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone....

If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.

Related posts on Blewett:

May 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17) | TrackBack

Saturday, May 18, 2013

"Crackheaded Ruling by Sixth Circuit"

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

Related post:

May 18, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, May 17, 2013

On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

With thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here). The start of the majority opinion (per Judge Merritt) will highlight for all federal sentencing fans why this ruling is a very big deal:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005.  The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).  As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.”  The Collapse of American Criminal Justice 184 (2011).  He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.

The start of the dissent (per Judge Gilman) will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat.  To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect.  But I have long thought, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

If (dare I say, when) this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate (perhaps via an amicus brief) my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend.

May 17, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Tuesday, December 04, 2012

Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratio

The Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 (7th Cir. Dec. 4, 2012) (available here), in response to a defendant's claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel's discussion in Matthews:

On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court’s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. § 3553(a)(6) (instructing district courts to consider whether a sentence results in “unwarranted sentence disparities”).

We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews’s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85, 109 (2007), and Spears v. United States, 555 U.S. 261 (2009). Moreover, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).

December 4, 2012 in Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Tuesday, July 31, 2012

Eleventh Circuit clarifies which defendants can benefit from new crack guidelines

The Eleventh Circuit issued a little, but still important, sentencing opinion in US v. Liberse, No. 12-10243 (11th Cir. July 30, 2012) (available here) to clarify just which defendants can now benefit from the new reduced crack guidelines. Here is how the opinion starts:

This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court’s authority to reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2).  In the first two decisions, we held that those amendments did not authorize a court to reduce a sentence under § 3582(c)(2) if the defendant’s guidelines range remained the statutory mandatory minimum after the amendments or if the guidelines range was otherwise not affected by the amendments.  See United States v. Glover, — F.3d —, No. 12-10580, 2012 WL 2814303, at *3–4 (11th Cir. July 11, 2012) (statutory mandatory minimum); United States v. Lawson, — F.3d —, No. 11-15912, 2012 WL 2866265, at *2–3 (11th Cir. July 13, 2012) (otherwise unchanged guidelines range).  Our decisions in Glover and Lawson establish that “a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case.” Glover, 2012 WL 2814303, at *3.

This appeal raises a different issue because the pro se appellant’s original guidelines range of 121 to 151 months was above, and thus not affected by, the applicable statutory mandatory minimum of 120 months.  As a result, Amendments 750 and 759 would reduce his guidelines range.  For those reasons, § 3582(c)(2) gives the district court authority to reduce the sentence in its discretion.  Because the court believed it lacked that authority, we vacate its order denying the motion for resentencing and remand for the court to determine whether to exercise its discretion to reduce the sentence.

July 31, 2012 in Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Thursday, November 03, 2011

"Changed crack sentencing rules leave a justice system in flux"

The title of this post is the headline of this effective article in today's Minneapolis Star Tribune which provides an in-depth review of all the challenges posed by the implementation of the new reduced federal sentencing guidelines for crack.  Here are excerpts:

Carlos Lamont Cleveland, 39, was jailed in 1995 on charges that he was the "right-hand man to the leader of a large and violent drug-trafficking organization" that distributed crack cocaine in Minnesota. But his sister stood by him as he kept challenging his 300-month sentence. This week, she got the news from her brother she had been waiting for: Cleveland would be returning home on Friday.

New sentencing rules that took effect on Tuesday made Cleveland one of more than 1,800 prisoners eligible for release right away, federal officials said. Creature comforts of a full-size bed, a freshly painted room and a bouquet of welcome-home balloons will await him in his hometown of Detroit....

Nationwide, more than 500 people were released from custody on Tuesday, the Federal Bureau of Prisons said. In Minnesota, the change in the guidelines will mean an early release for 100 to 150 inmates who were convicted of crack cocaine crimes. The change is eventually expected to benefit 12,000 U.S. inmates, reducing sentences by an average of three years....

For the past few months, U.S. probation officers, federal defenders and federal prosecutors in Minnesota have been combing through hundreds of court files in an effort to find inmates who may be eligible for release under the new retroactive sentencing rules....

Hundreds of files fill a space in the federal public defender's office that they jokingly call the "crack room," Roe said. At least two lawyers review each file. "The last thing we want to do is miss somebody," she said.

So far, they've found 21 candidates for "immediate release," Roe said. But the number is still in flux. The U.S. attorney's office said it has identified 28 potential candidates for immediate release; the Probation Office said it might be somewhat fewer than that.

So far, orders have been signed for just four that reduced their sentences to time served. In addition to Cleveland, who got a 29- month reduction, they include Paris Lamar Wilson, sentenced in 1997 on charges of conspiracy to distribute crack cocaine, possession and use of a firearm related to drug trafficking; Bobby Woods, sentenced in 2001 on charges of conspiracy and possession of cocaine base, and Steven Mitchell Gant, who pleaded guilty in 2008 to charges of conspiracy and possession of cocaine base, cocaine and ecstasy.

The orders give the Bureau of Prisons 10 days to release the inmates. Jeanne Cooney, a spokeswoman for the U.S. attorney's office in Minnesota, said under the law, the bureau gets time to notify victims in some cases or even local law enforcement. The offenders will remain subject to post- prison "supervised release" even if, in effect, they served excess time under the new guidelines.

Some of the inmates affected by the changes have been imprisoned long after the time they would've been released had the new rules been in place when they were originally sentenced, Roe said. Two are already under electronic monitoring in their homes. Others are in half-way houses because they were already transitioning back into society as they neared the end of their original sentence.

Chief U.S. Probation Officer Kevin Lowry said some inmates who were released early after the first guidelines change experienced "a little bit of culture shock" at their sudden release. "Some did indicate that they had anxiety about being back in the community sooner than they expected," he said. Kerns said probation officers worked hard then and are working hard now to connect the outgoing offenders with social services to ensure they have a place to stay, as well as educational and employment opportunities. "That's what we'll continue to focus on, successful re-entry into the community and helping these folks turn back into successful, law abiding lifestyles," he said.

November 3, 2011 in New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 01, 2011

"Sentencing Guidelines for Crack Cocaine Offenses Are Now Officially Less Appalling"

The title of this post comes from the fitting headline from this Reason entry, which summarizes today's major federal sentencing news with the fulsome (and fitting?) dose of cynicism:

For all the disappointment (or just low expectations confirmed) about the Obama administration and the drug war, especially with the current crack-downs on medical marijuana, it's nice to remember the one damn thing Obama has done on this front in his three years: reduce the harsh sentencing disparity of crack cocaine offenses compared with powder.

These guidelines, passed in June, are about to officially do some good for those already in jail -- hopefully.

Reuters:

Up to 1,800 inmates are immediately eligible to go free and prison officials are processing a growing number of release orders, said Chris Burke, a spokesman for the U.S. Federal Bureau of Prisons. "The pace has picked up in the last couple of weeks and we don't expect it to abate any time soon," he said.

The U.S. Sentencing Commission estimated this summer that about 12,000 inmates could be eligible to seek a reduced sentence, with the impact spread over decades. The average reduction in sentence would be 37 months.

People suffering three fewer years behind bars certainly is a cause for celebration. And the reduction of sentencing minimums for crack -- which, for example, treated 5 grams of crack the same as 500 grams of cocaine -- is decades overdue.

But don't get to optimistic about Obama.  Crack is still worth 18 times what powder cocaine is, for some reason.

And none of these folks are out yet.  There's still many exciting bureaucratic hoops to jump through before Hamedah Hasan and others get their lives back.  The drug war continues, and the Obama White House isn't particularly interested in letting anyone's youthful experiments with substances -- besides the president's -- slide.

November 1, 2011 in Drug Offense Sentencing, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, October 04, 2011

Eleventh Circuit now to review en banc FSA pipeline sentencing issue

Regular readers may recall this post and this post from this past summer discussing the important Eleventh Circuit panel ruling in US v. Rojas 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 this new order in Rojas indicating that this issue is now going to be examined by the full Eleventh Circuit en banc.

I am disappointed (but not all that surprised) that the full Eleventh Circuit does not have better things to do than to re-review the application of the FSA's new, more fair mandatory minimum terms to a few more federal defendants.  After all, since the Rojas ruling, both the Attorney General (as detailed here) and the Third Circuit (in Dixon discussed here) have concluded that the Rojas panel got the law right.  

Moreover, and more importantly, the Rojas panel ruling does not require that district judges give lower sentences to the most aggravated crack offenses, rather it simply allows district judges to consider lower sentences for the most mitigated crack offenses.  But, apparently a majority of judges on the Eleventh Circuit are so fearful of even giving a few more federal defendants even the chance to argue at sentencing for the lower sentences that Congress has now deemed more fair that they have to turn this into a big en banc battle.  (I wonder how much in federal tax dollars are going to be wasted on the federal criminal justice debate over this narrow issue of when exactly crack sentencing is supposed to become fair as Congress has commanded.  Yeesh.)

Some prior posts on this FSA pipeline issue:

October 4, 2011 in Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, September 06, 2011

"OSU book thief sentenced to probation and restitution"

Because this new piece from the Columbus Dispatch, which has the same headline as this post, strikes very "close to home," I am not going to comment on the substance of this notable story of crime and punishment.  But, especially because I am pretty sure I never met the now-sentenced former-OSU-law student, I am interested in reader reactions:

A former Ohio State University student avoided prison today but likely has forfeited his future as a lawyer for stealing books from the Moritz College of Law.

In a deal that allowed him to escape jail time, Christopher B. Valdes, 24, formerly of the University District but now living with his mother in Florida, was placed on five years of probation and ordered to pay $34,619.88 in restitution for books he sold online.  As of this morning, Valdes has paid back $19,450.

Valdes also agreed that he “will not have or pursue employment or education in the field of law,” according to the details of his guilty plea in Franklin County Common Pleas Court.

Assistant Prosecutor John Litle said the ban on law school and practice is in place only for the five years of probation.  But Valdes would have to pass character and fitness requirements to become a lawyer.  “As a practical matter ... it’s unlikely that he can do that” because of the felony conviction, Litle said.

Valdes had been indicted on a fourth-degree felony count of theft that could have landed him in prison for up to 18 months.  He pleaded guilty in June to a lesser fifth-degree felony punishable by up to a year in prison.

Valdes, who is no longer a student at Ohio State, was accused by campus police of stealing more than 200 books between November 2009 and last October after advertising them for sale online.  Officers learned of the thefts in August 2010, when the university received an e-mail from a Brazilian lawyer who had bought a volume online and found a crossed-out OSU ink stamp on its inside front cover, according to court documents.

A check confirmed that the title had vanished from the shelves.  Valdes was arrested after police set up a sting involving a hidden camera and a marked book.

September 6, 2011 in Collateral consequences, Criminal Sentences Alternatives, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (2) | TrackBack

Wednesday, August 24, 2011

Seventh Circuit judges explain their latest views on FSA pipeline cases

Regular readers know that district court and circuit courts have been struggling through (and splitting) on whether the new crack mandatory minimum sentencing provisions of the Fair Sentencing Act apply in cases involved offenses pre-dating the new law but not yet sentenced.  The Seventh Circuit was the first, and remains the only, circuit to rule expressly that the old harsher 100-1 mandatories still apply to these pipeline cases.  Today, though a set of opinions in US v. Holcomb, No. 11-1558 (7th Cir. Aug. 24, 2011) (available here), a number of Seventh Circuit judges explain at length their latest thinking on this issue in opinion that accompany an order refusing to reconsider this issue en banc.

There is a lot of interest in these opinion for those like me who have been following this debate closely.  Here are a few snippets, first from the end of Judge Easterbrook's 16-page opinion:

If the President wants to apply the lower min imum and maximum penalt ies to all cases, pending and closed, he has only to issue a general commutation. The pardon power permits the President to achieve retroactive lenience if he is willing to pay the political price. By contrast, the judiciary must implement compromises faithfully, even when most judge s wi sh that the political decision had been different. I have therefore voted not to hear these appeals en banc.

Now from the second paragraph of Judge Williams' 20-page opinion:

Our circuit should have heard this case en banc.  Three other circuits have ruled that judges no longer must impose unfair sentences after the Fair Sentencing Act.  This issue affects pending cases and many c ases to come in light of the five-year statute of limitations on drug prosecutions. There were equal votes to grant and deny rehearing en banc.  So our circuit’s law stands, and it is wrong.

Some prior posts on this FSA pipeline issue: 

August 24, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report | Permalink | Comments (0) | 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

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