Sentencing Law and Policy

Revised data from USSC concerning potential impact of FSA guideline retroactivity

The US Sentencing Comission now has posted here this document described as an "Analysis of the Impact of Guideline Implementation of the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively." This Commission document provides an updated estimate of the impact on drug offenders currently incarcerated of any decision to make the new revised crack guidelines retroactive. Here are key snippets from the lengthy document:

On October 15, 2010, the United States Sentencing Commission promulgated a temporary, emergency amendment that implemented the emergency directive in section 8 of the Fair Sentencing Act of 2010. On April 6, 2011, the Commission re-promulgated the temporary amendment as a permanent amendment, which will become effective, absent congressional action, on November 1, 2011.  The Commission also voted to publish an issue for comment regarding whether, pursuant to 28 U.S.C. § 994(u) and 18 U.S.C. § 3582(c)(2), it should give the amendment retroactive effect, and announced a hearing for June 1, 2011 regarding that issue.  This memorandum estimates the impact on offenders currently incarcerated in the federal prison system of portions of the amendment, if the Commission were to make all of the amendment, or those portions, retroactively applicable....

After accounting for those offenders for whom the sentencing range would not change after application of the FSA Guideline Amendment, the total number of crack cocaine offenders incarcerated on November 1, 2011, who are estimated to be eligible to receive a reduced sentence under 18 U.S.C. § 3582(c)(2) is 12,040....

Based on [various] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.6 percent (or 37 months, from 164 months to 127 months)....  [It appears] that 7,152 offenders (78.1%) would receive a sentence reduction of 48 months or less.  Conversely, 280 offenders (3.1%) would receive a sentence reduction of more than 10 years.

USSC request comments on possible retroactivity of new crack and drug guidelines

As detailed in this document described as a "Reader-Friendly Version of the Commission's Request for Comment on Retroactivity," the US Sentencing Commission is now requesting public comment by June 2, 2011, concerning "whether Amendment 2 [of its most recent set of Guideline amendments sent to Congress], pertaining to drug offenses, should be included as an amendment that may be applied retroactively to previously sentenced defendants."  Here is more background and details from this document:

On April 28, 2011, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2011, unless Congress acts to the contrary.  Such amendments and the reasons for amendment subsequently were published in the Federal Register.  See 76 FR 24960 (May 3, 2011).

Amendment 2, pertaining to drug offenses, has the effect of lowering guideline ranges.... The Commission seeks comment regarding whether, pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), this amendment, or any part thereof, should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants.

The Commission also requests comment regarding whether, if it amends §1B1.10(c) to include this amendment, it also should amend §1B1.10 to provide guidance to the courts on the procedure to be used when applying an amendment retroactively under 18 U.S.C. § 3582(c)(2)....

Amendment 2, pertaining to drug offenses, contains three parts.  The Commission seeks comment on whether it should list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants.

Part A changes the Drug Quantity Table in §2D1.1 for offenses involving crack cocaine. This has the effect of lowering guideline ranges for certain defendants for offenses involving crack cocaine.

Part B contains both mitigating and aggravating provisions for offenses involving drugs, regardless of drug type. The mitigating provisions have the effect of lowering guideline ranges for certain defendants in drug cases, and the aggravating provisions have the effect of raising guideline ranges for certain defendants in drug cases.

Part C deletes the cross reference in §2D2.1(b)(1) under which an offender who possessed more than 5 grams of crack cocaine was sentenced under §2D1.1. This has the effect of lowering guideline ranges for certain defendants for offenses involving simple possession of crack cocaine.

For each of these three parts, the Commission requests comment on whether that part should be listed in subsection (c) of §1B1.10 as an amendment that may be applied retroactively....

If the Commission does list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants, should the Commission provide further guidance or limitations regarding the circumstances in which and the amount by which sentences may be reduced? 

Justice Department, six months later, responds to Senators' inquiry about handling FSA pipeline cases

Thanks to a very helpful reader, I have gotten a copy (and provide for downloading below) of a response from the Justice Department to the letter, dated November 17, 2010, from Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder (blogged here) which urged the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment."  

The response says little more than what the DOJ lawyers have been saying in courts around the country, namely that the Fair Sentencing Act's silence about implementation dates means that the general Savings Statute entails that only conduct after the effective date of the FSA gets the benefit of the new mandatory minimums.  Nevertheless, the letter is an interesting read, especially because it includes as attachments the internal memos sent from Main Justice to all prosecutors about how they should respond to the enactment of the FSA in August 2010 and to the promulgation of revised crack guidelines in November 2011.

Download FSA_Holder_letter_response_042511

Some posts on this FSA issue:

• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Notable new letter to AG Eric Holder concerning application of the FSA
• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• Federal sentencing litigation at its absolute finest
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Second Circuit demands application of old 100-1 crack mandatories ... with laments
• Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes

An interesting pro-Reagan spin on crack-powder federal sentencing reform

The Heritage Foundation blog has this very interesting new post about federal crack-powder sentencing reform which is headlined "Vindicating Reagan’s Drug Policy … 25 Years Later."  Here are excerpts:

Two weeks ago, the U.S. Sentencing Commission promulgated a permanent amendment to the Federal Sentencing Guidelines that reduces jail time for those convicted of offenses related to crack cocaine.  Liberals would love to portray the new drug sentencing standard for crack cocaine as a success story, in which the Obama administration undid a draconian Reagan-era drug policy.  Critics are unduly harsh on Ronald Reagan’s drug policy, blaming the Great Communicator for driving the hysteria in the 1980s which led to the enactment of unfair criminal drug laws.

However, liberals might want to avoid taking credit for “fairer” crack cocaine sentencing laws when President Obama signed the Fair Sentencing Act of 2010.  A look back twenty-five years ago reveals it was not President Reagan behind the gross disparities in sentencing of cocaine traffickers but in fact the liberals who created the problem in the first place.

In 1986,...[the] person responsible for the crack-powder cocaine ratio contained within the Anti-Drug Abuse Act of 1986 was Vice President Joe Biden.  Then-Senator Biden succumbed to what he later referred to as “a feeling of desperation” and proposed a 100-to-1 ratio.  His Democratic colleague from Florida, Senator Lawton Chiles, went even farther, by suggesting a 1000-to-1 ratio.  The 100-to-1 ratio ultimately became law and served as the basis for the November 1, 1987 sentencing guidelines.  By contrast, the Reagan administration proposed a much more reasonable 20-to-1 crack-powder ratio.

As a result of adopting Senator Biden’s ratio, defendants convicted of trafficking 50 grams of crack cocaine received a mandatory minimum sentence of 10 years, the same sentence given to someone who for trafficking in 5,000 grams of powder cocaine. Confronted with this disparity, the Sentencing Commission proposed reductions to the ratio in 1995, 1997, 2002 and 2007.  Each of these recommendations was unsuccessful because Congress refused to make a change.

Twenty years after his proposal became law, Biden backtracked, admitting that the facts that informed Congress’s determination “have proved to be wrong, making the underlying cocaine sentence structure we created unfounded and unfair.”  He also said, “Each of the myths upon which we based the sentencing disparity has since been dispelled or altered.”

The amendment to the guidelines that was promulgated last week raised the quantities of crack cocaine to trigger mandatory minimum terms from 5 to 28 grams for five-year sentences and from 50 to 280 grams for ten-year sentences.  Thus, the Fair Sentencing Act of 2010 reduced the ration to 18-to-1.  After multiple attempts by the Sentencing Commission to undo Biden’s proposal and years where crack and powder cocaine traffickers were sentenced in vastly different ways, a proportion akin to Reagan’s policy was established.

On August 3, 2010, President Obama signed the Fair Sentencing Act in the Oval Office.  He made no remarks at the signing.  What President Obama probably should have said was that twenty-five years of a vast disparity in drug sentencing could have been avoided if Congress only listened to Reagan.

Judge Mark Bennet thoroughly explains why he is stil going to use 1:1 ratio in crack sentencings

In a week full of important crack sentencing news, I think the most interesting development come from Iowa in the form of a lengthy new opinion by US District Judge Mark Bennett in US v. Williams, No. CR 10-4083-2-MWB (D. Iowa Sept. 27, 2010) (available for download below). I could say so much about so many notable passages in this 82-page opinion, but I will be content to let the first paragraph and the conclusion of the Williams opinion speak for itself:

Defendant Billy Williams, Sr., came before me on March 15, 2011, for a presentencing hearing on his motion for downward variance, objections to the presentence report, and other legal issues, following his guilty plea to four crack cocaine charges.  Although there were numerous other issues to be resolved in the course of Williams’s sentencing, this Memorandum Opinion And Order focuses exclusively on the issue of whether I should continue to adhere to my prior determination that a 1:1 crack-to-powder ratio is appropriate to calculate the guideline sentencing range for crack cocaine offenses, or should now adopt the roughly 18:1 ratio adopted by the Sentencing Commission on November 1, 2010, pursuant to a congressional mandate in the Fair Sentencing Act of 2010.  When I first learned that the 2010 FSA was about to be passed, I just assumed that I would change my opinion from a 1:1 ratio to the new 18:1 ratio, because I assumed that Congress would have had persuasive evidence — or at least some empirical or other evidence—before it as the basis to adopt that new ratio.  I likewise assumed that the Sentencing Commission would have brought its institutional expertise and empirical evidence to bear, both in advising Congress and in adopting crack cocaine Sentencing Guidelines based on the 18:1 ratio.  Failing that, I assumed that the prosecution would present at the presentencing hearing in this case some evidence supporting the 18:1 ratio.  This Memorandum Opinion And Order addresses whether my modest expectations have been fulfilled and whether I should now also adopt the 18:1 ratio adopted in the amended Sentencing Guidelines....

Make no mistake: I believe that the replacement of the 100:1 crack-to-powder ratio of the 1986 Act and associated Sentencing Guidelines with the 18:1 crack-to-powder ratio of the 2010 FSA and the November 1, 2010, amendments to the Sentencing Guidelines was a huge improvement, in terms of fairness to crack defendants.  While such incremental improvement is often the nature of political progress on difficult social justice issues — and, in this instance, the increment is perhaps unusually large — an incremental improvement is not enough to make me abdicate my duty to “[c]ritically evaluat[e] the crack/cocaine ratio in terms of its fealty to the purposes of the Sentencing Reform Act.” See Whigham, ___ F. Supp. 2d at ___, 2010 WL 4959882 at *7.

Performing that duty here, I must reject the Sentencing Guidelines using the “new” 18:1 ratio, just as I rejected the Sentencing Guidelines using the “old” 100:1 ratio, based on a policy disagreement with those guidelines, even in “mine-run” cases, such as this one.  I must do so, because I find that the “new” 18:1 guidelines still suffer from most or all of the same injustices that plagued the 100:1 guidelines, including the failure of the Sentencing Commission to exercise its characteristic institutional role in developing the guidelines, the lack of support for most of the assumptions that crack cocaine involves greater harms than powder cocaine, the improper use of the quantity ratio as a “proxy” for the perceived greater harms of crack cocaine, and the disparate impact of the ratio on black offenders.  I also find that the “new” guidelines suffer from some additional concerns, in that they now create a “double whammy” on crack defendants, penalizing them once for the assumed presence of aggravating circumstances in crack cocaine cases and again for the actual presence of such aggravating circumstances in a particular case.

In one respect the “new” 18:1 guideline ratio is more irrational and pernicious than the original 100:1.  When the 100:1 ratio was enacted, Congress and the Sentencing Commission did not have access to the overwhelming scientific evidence that they now have.  This overwhelming scientific evidence now demonstrates that the difference between crack and powder is like the difference between ice and water — or beer and wine.  Can anyone imagine a sentence that is many times harsher for becoming legally intoxicated by drinking wine rather than beer?  Of course not.

I also reiterate that the proper methodology, in light of my policy-based rejection of the 18:1 ratio in the Sentencing Guidelines, is to calculate the guideline range under existing law (i.e., using the 18:1 ratio) and any appropriate guideline adjustments or departures, including the “new” adjustments for aggravating and mitigating circumstances, but then to calculate an alternative guideline range using a 1:1 ratio, again including appropriate guideline adjustments or departures, again including the “new” adjustments for aggravating and mitigating circumstances.  The court must ultimately use or vary from that alternative guideline range based upon consideration of the 18 U.S.C. § 3553(a) factors in light of case-specific circumstances.

I will sentence defendant Billy Williams, Sr., accordingly.

Download 10cr4083.dno305.Williams.newcrackratio.040711

US Sentencing Commission makes guideline crack reductions permanent

As detailed in this official press release from the US Sentencing Commission, the USSC today promulgated a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010."  Here is more:

Commission chair, Judge Patti B. Saris (District of Massachusetts) said, “The Fair Sentencing Act was among the most significant pieces of criminal justice legislation passed by Congress in the last three decades. For over 15 years, the Commission has advocated for changes to the statutory penalty structure for crack cocaine offenses. The Commission applauds Congress and the Administration for addressing the sentencing disparity between crack cocaine and powder cocaine offenders.”

No crack cocaine offender will see his or her sentence increase based solely on the quantity thresholds the Commission set today in the federal sentencing guidelines. As a result of today’s action, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

Based on an analysis of the most recent sentencing data, the Commission estimates that crack cocaine offenders sentenced after November 1, 2011, will receive sentences that are approximately 25 percent lower on average as a result of the changes made to the federal sentencing guidelines today. Moreover, the Commission estimates that these changes may reduce the cost of incarceration for crack cocaine offenders in the federal prison system in the future.

Today’s vote by the Commission will set the triggering quantities of crack cocaine for the five and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. This action maintains proportionality with other drug types insofar as the quantity of illegal drugs, including crack cocaine, required to trigger the five- and ten-year statutory mandatory minimum penalties is subject to the same base offense level no matter the drug type.

Pursuant to statute, the Commission must consider whether its amendment to the federal sentencing guidelines implementing the Fair Sentencing Act should apply retroactively. The Commission plans to hold a hearing on June 1, 2011, to consider retroactivity, and voted today to seek public comment on the issue.

Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes

While I was checking out lots of culture and humanity in Las Vegas yesterday (explanation here), the Seventh Circuit issued an important new opinion concerning the application of the Fair Sentencing Act to pipeline cases in US v. Fisher, No. 10-2352 (7th Cir. March 11, 2011) (available here).  What makes Fishersignificant is that the panel expressly considers and rejects a defendant's claims that there are unique reasons for applying the FSA's new crack sentencing provisions to those initially sentenced after the FSA became law.  Here are key passages from the opinion:

Debate surrounding the crack cocaine sentencing scheme and the infamous “100:1 ratio” has been raging for years, and there is strong rhetoric to be found on either side.  The FSA is compromise legislation and must be viewed as such.  Given the long-standing debate surrounding, and high-level congressional awareness of, this issue, we hesitate to read in by implication anything not obvious in the text of the FSA.  We believe that if Congress wanted the FSA or the guideline amendment s to apply to not-yet-sentenced defendant s convicted on pre-FSA conduct, it would have at least dropped a hint to that effect somewhere in the text of the FSA, perhaps in its charge to the Sentencing Commission.  In other words, if Congress wanted retroactive application of the FSA, it would have said so.

Given the absence of any direct statement or necessary implication to the contrary, we reaffirm our finding that the FSA does not apply retroactively, and further find that the relevant date for a determination of retroactivity is the date of the unde rlying criminal conduct , not the date of sentencing.

We have sympathy for the two defendants here , who lost on a temporal roll of the cosmic dice and we re sentenced under a structure which has now been recognized as unfair. However, “[p]unishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.”  Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 664 (1974).

As regular readers know, I think this outcome is wrong as a matter of statutory interpretation, in part because I believe statutory construction cannons like the rule of lenity and constitutional doubt provide a basis for reaching the opposite conclusion than the one reached by the Seventh Circuit. Nevertheless, I fear that a number of circuit will end up ruling like the Seventh Circuit here even though there has been a deep split in the district courts on this precise issue.

Some posts on this FSA issue:

• Second Circuit demands application of old 100-1 crack mandatories ... with laments
• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• Federal sentencing litigation at its absolute finest
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Notable new letter to AG Eric Holder concerning application of the FSA

Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?

There are lots of notable and important aspects to the thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act's altered mandatory minimums apply to such a defendant as well."  But in this post I want to spotlight and wonder aloud about a footnote from the opinion noting DOJ's current advocacy position on this important and consequential issue.

Specifically, after explaining that the government in Douglas was urging that the old crack mandatory minimums apply to "to all future prosecutions and sentencings based on pre-August 3, 2010, conduct," Judge Hornby drops this footnote:

At oral argument, I did inquire of the Assistant United States Attorney whether his argument was a matter of individual U.S. Attorney Office discretion or the position of the Department of Justice, and he replied that he understood it to be the policy of the Department of Justice.

I am very pleased that Judge Hornby asked this important question, and now very curious why President Obama's Department of Justice has adopted the advocacy policy that the unfair and now reformed old crack sentencing statute should and must be applied for as long as possible to as many defendants as possible.  For a number of reasons, this policy/advocacy seems deeply misguided and troublesome:

First, as I sought to explained in this amicus letter I submitted in a pending case in NYC, I think a fair reading of congressional intent and statutory construction principles call for the FSA to apply to pending cases as soon as possible.

Second, given that there are debatable statutory claims here and that every defendant in every district court with a sentencing pending will press for immediate application of the FSA, the DOJ's current position ensures extensive, costly federal litigation for many months and will likely ensure disparate sentencing outcomes in different parts of the country for many years. If DOJ is really interested in consistent sentencing practices and outcomes, it could and should simply embrace the policy of having the FSA now apply to all not-yet-sentenced defendants.

Third, way back in April 2009, the official advocacy policy of the DOJ was to call upon Congress to "completely eliminate[] the sentencing disparity between crack and powder cocaine" (testimony here). Disappointingly, Congress only partially reduced the disparity; but, now even more disappointingly, DOJ now seems to want the old unjust 100-1 ratio to apply for a long as possible to as many defendants as possible.

I can imagine various reasons why federal prosecutors have adopted its worrisome position in these FSA pipeline case.  But because DOJ is supposed to be a Department of Justice, not merely a Department of making the best arguments for federal prosecutors, I am hopeful that DOJ might before long consider changing course.

New USDC opinion applying new FSA law to not-yet-sentenced defendants

A helpful lawyer altered me to a thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well."  Here is Douglas opinion's final substantive paragraph (and footnote) explaining how Judge Hornby reaches this conclusion:

I conclude, based upon the context of the Act, its title, its preamble, the emergency authority afforded to the Commission, and the Sentencing Reform Act of 1984, that Congress did not want federal judges to continue to impose harsher mandatory sentences after enactment merely because the criminal conduct occurred before enactment.  Yes, the 1871 Saving Clause deserves attention, but it does not command special attention. Generally, as Great Northern recognized, an earlier Congress cannot bind a later Congress. If it is a stretch to say that the Fair Sentencing Act of 2010 "expressly provide[s]" that the previous mandatory minimums are vacated for future sentences, Congress certainly made clear the urgency of change and its concern for fairness; and it gave no signal that it was distinguishing the emergency Guideline amendments that it expressly mandated from the statutory sentencing floors from which they directly flow.  In the words of the Supreme Court, it is either a "necessary implication" or a "fair implication" that, although retroactivity to those previously imprisoned might not be contemplated, the Fair Sentencing Act of 2010 permits no further federal crack sentencings that are not "fair."[FN57]

[FN57] Indeed, I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair. One can imagine the ramifications of a contrary decision.  Defendants would seek to negotiate with federal prosecutors to waive indictment and plead to an information that charges conduct that extends after August 3, 2010, so that they could be sentenced under the new Act.  That charging option would be formidable leverage for prosecutors until the statute of limitations has run on criminal conduct that occurred before August 3, 2010.  And that discretion would be lodged with prosecutors where its exercise is invisible, rather than with judges whose decisions must be explained upon the public record.  That operation of the Fair Sentencing Act would belie its title, at least for the next few years.

Seventh Circuit joins Sixth and Eleventh Circuits in rejecting applicability of FSA to pipeline cases

At the end of a lengthy opinion addressing other issues, a Seventh Circuit panel today in US v. Bell, No. 09-3908 (7th Cir. Oct. 20, 2010)  (available here), weighs in concerning an issue that I know is being litigated in various ways in various federal courts in the wake of the enactment of the Fair Sentencing Act.  Here are excerpts from the panel's work:

Three days after the FSA was enacted, Bell, who had not previously challenged any aspect of his sentence, filed a pro se motion for leave to file a supplemental brief regarding the application of the FSA to his case. We granted Bell’s motion, ordered his court-appointed counsel to file a brief on his behalf, and ordered the government to file a response. After reviewing the ably prepared briefs of both parties, we conclude that the FSA is not retroactive and therefore does not apply to Bell’s case....

Like our sister circuits that have considered this issue, see United States v. Gomes, ___ F.3d ___, No. 10-11225, 2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010); United States v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20, 2010), we conclude that the savings statute operates to bar the retroactive application of the FSA. Bell’s arguments to the contrary are novel but ultimately unpersuasive....

[T]he FSA’s predominant purpose was to change the punishments associated with drug offenses. The savings statute therefore prevents it from operating retroactively absent any indication from Congress.  And since the FSA does not contain so much as a hint that Congress intended it to apply retroactively, it cannot help Bell here.

Though I guess it is fair to say that "the FSA does not contain so much as a hint that Congress intended it to apply retroactively," I am not so sure (1) that Bell is technically seeking its retroactive application (at least as that term is used in habeas jurisprudence), nor so sure (2) that Congress did not want the FSA to be applied to cases still in the sentencing pipeline. Let me explain what I mean here:

1.As the term is used in habeas jurisprudence, asking for a new law to apply "retroactively" means seeking to apply that new law to cases that have already become "final," which means cases that have already completed all stages of direct appeal (up to and through SCOTUS review).  Bell's case is still on direct appeal, so he is not really seeking "retroactive" application of the FSA, at least not as that term is used in habeas settings.

2.Congress did provide in the FSA for the US Sentencing Commission to make emergency amendments to the sentencing guidelines to reflect the FSA's new crack/powder ratio. It is not entirely clear why Congress would want/need the USSG to make such emergency amendments unless it wanted the provisions and consequences of the FSA to kick in ASAP. This reality is not a clear statement of Congressional purpose to apply the FSA to cases in the pipeline like Bell's case, but it does at least "hint" that Congress intended the new sentencing terms of the FSA to impact crack sentencing cases as soon as possible.

US Sentencing Commission action to implement FSA and new crack guidelines

As detailed in this public notice, the United States Sentencing Commission has a public meeting scheduled for this afternoon in DC, and the agenda includes "Possible Vote to Promulgate Emergency, Temporary Amendment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   These proposed amendments were previously set out by the USSC here.

Relatedly, the USSC has now posted here the materials "received by the Commission in response to its request for public comment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   Here are links to all this stuff:

U.S. Department of Justice

Rep. John Conyers, Jr., Chair of the House Committee on the Judiciary and Rep. Robert C. "Bobby" Scott, Chair of the House Subcommittee on Crime, Terrorism, and Homeland Security

Senator Richard J. Durbin

Probation Officers Advisory Group

Federal Public and Community Defenders

National Association of Criminal Defense Lawyers

Families Against Mandatory Minimums

American Civil Liberties Union

The Sentencing Project

Citizen Letters

UPDATE:  As detailed in this news release, on late Friday "the United States Sentencing Commission voted to promulgate a temporary, emergency amendment to the federal sentencing guidelines consistent with the statutory changes to crack cocaine and other drug trafficking offenses made by the Fair Sentencing Act of 2010 [which] will take effect on November 1, 2010."

The release explains that the "Commission estimates that the new average sentence for trafficking in crack cocaine will be 101 months, a 13.7 percent decrease in average sentence length. The Commission estimates that more than 1,500 prison beds will be saved after five years and that more than 3,800 beds will be saved after ten years."

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

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

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

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

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

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

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

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

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

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

House of Representatives seems poised to finally pass federal crack/powder disparity reform bill

As detailed in this new AP article, which is headlined "Congress seeks to narrow gap in cocaine sentences," it appears that the House of Representatives is today going to approve the compromise crack sentencing reform bill that made it though the Senate back in March. Here are the basics:

The House planned to vote Wednesday on the measure that would change the 1986 law under which a person convicted of crack cocaine possession gets the same mandatory prison term as someone with 100 times the same amount of powder cocaine.  The legislation would reduce that ratio to about 18-1.

The Senate has passed the legislation. House approval would send it to President Barack Obama.  "There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses," Attorney General Eric Holder said when the Senate acted in March....

Under current law, possession of 5 grams of crack triggers a mandatory minimum five-year prison sentence.  The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine.  The proposed legislation would apply the five-year term to someone with 28 grams, or an ounce, of crack.  It would be the first time in 40 years that Congress has repealed a mandatory minimum sentence.

All reports suggest that President Obama would sign this compromise bill, and I assume he would do so ASAP. 

The exact timing of this bill becoming law is important for lots or reasons, especially because I believe the bill gives the US Sentencing Commission only 90 days to develop needed guideline amendments in response to the law.  That, in turn, means the USSC may have to, before the end of October, significantly rewrite a significant portion of the current drug sentencing guidelines.  And that, in turn, means everyone (and their lawyers) with current or pending federal drug offense sentences will have a lot more to be watching over the next few months than just the baseball pennant races.

Some recent related posts:

• Is the House finally about to pass the compromise crack/powder reform bill?
• House approves creation of National Criminal Justice Commission
• Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
• Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
• Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
• Will and should House adopt the crack/powder reform compromise passed by Senate?
• Different editorial perspectives on crack reform compromise
• Questions about the "when" and "now what" for crack/powder sentencing reform
• What's the status of crack/powder sentencing reform in the House?

UPDATE: It is official, as detailed in this new AP article on the House vote today:

The House, by voice vote, approved a bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature. During his presidential campaign, Obama said that the wide gap in sentencing "cannot be justified and should be eliminated." The Senate passed the bill in March....

"For Congress to take a step toward saying 'we have made a mistake' and this sentence is too severe ... is really remarkable," said Virginia Sloan, president of the Constitution Project, which in studies of sentencing practices has referred to crack cocaine mandates as a "'poster child' for the injustices of mandatory sentencing." Under current law, possession of five grams of crack triggers a mandatory minimum five-year prison sentence. The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine....

The Congressional Budget Office said the bill would save the government $42 million over five years because of the reduction in prison populations.

Rep. Lamar Smith of Texas, the top Republican on the Judiciary Committee, was the only lawmaker to speak against the bill, saying the 1986 law was enacted at a time when the crack cocaine epidemic was bringing a sharp spike in violence to minority communities and it would be a mistake to change it. "Why do we want to risk another surge of addiction and violence by reducing penalties?" he asked. "Why are we coddling some of the most dangerous drug traffickers in America?"

Rep. Bobby Scott, D-Va., noted that the bill also requires the sentencing commission to significantly increase penalties for drug violations involving violence. "This way the defendant is sentenced for what he or she actually did, not the form of cocaine involved," Scott said.

Split Sixth Circuit ruling spotlights split over who can get resentenced under new crack guidelines

Within the next few weeks, the Supreme Court will hand down a ruling in the Dillon case dealing with the extent of a district court's authority to reduce sentences when a defendant is eligible for a reduction under the Sentencing Commission new reduced crack guideline.  But the Dillon case is unlikley to resolve or even address questions concerning just who is eligible for a reduction in the first instance, and this eligibility issue has lead to some circuit splits in a variety of contexts

An intriguing  new split opinion today from the Sixth Circuit in US v. Pembrook, No. 08-6452 (6th Cir. Jun. 11, 2010) (available here), spotlights some aspects of this debate over this eligibility issue. Here is how the majority opinion in Pembrook starts:

In 1997, Daryl Marcus Pembrook pleaded guilty to possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was a career offender. At sentencing, Pembrook prevailed upon the district court to depart downward from his career-offender guideline range to a sentence stated with reference to the analogous range for his crack-cocaine offenses. A decade later, Pembrook filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the crack-cocaine guidelines had lowered his applicable guideline range. The district court denied his motion, on the grounds that Pembrook’s applicable guideline range was his career-offender range–not his crack-cocaine range–and Amendment 706 did not affect that range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline range was his career-offender range, and Amendment 706 did not have the effect of lowering that range, we affirm.

Here is how the dissent in Pembrook starts:

The Sentencing Guidelines should be interpreted, if the words can fairly be so read, to permit resentencing when a properly applied Guideline that affected the length of a sentence is later retroactively reduced. When two Guideline calculations were properly used at two different steps of the sentencing determination process to determine a defendant’s original sentence, no policy supports permitting resentencing only if the first, but not if the second, calculation would have been different under a retroactive amendment. It is hard to imagine why the Sentencing Commission would adopt such a policy.  The syntax of the operative policy statement language does not require such a limit; indeed, it cuts the other way.  Under the policy statement, there must have been a lowering of “the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).  The words most naturally mean “a guideline range [properly] applied to the defendant.”  The words do not require that there be only one such range. By analogy, if a sport rule provides for a penalty if “the player’s foot steps out of bounds,” English syntax does not require that the rule apply only to the right foot or the left foot.  The clear meaning of “the player’s foot” is “a foot of the player.”  In short, because the Sentencing Commission retroactively lowered the Guideline range that the district court properly applied to Pembrook so as to affect his sentence, the requirements of the statute and the operative policy statement were fulfilled, and the district court had the authority to resentence Pembrook.

I have not given much attention to these issues as we await a ruling from the Supreme Court in Dillon.  But it will be interesting to see if SCOTUS will take up

House bill to create "National Criminal Justice Commission" to be rolled out tomorrow

This new press release from the office of Representative Bill Delahunt (D-MA) reports on a notable legislative development to be formally annouced at a press conference tomorrow. Here are the details:

U.S. Reps Bill Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), and Tom Rooney (R-FL) will hold a press conference on Tuesday April 27, 2010 at 11:30AM in Room 2255 of the Rayburn House Office Building to announce the introduction of the National Criminal Justice Commission Act of 2010.

The National Criminal Justice Commission Act of 2010, was introduced in the Senate as S. 714 by Senators Jim Webb. The bill has received widespread bipartisan support and has 37 cosponsors in the Senate, including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), Chairman of the Subcommittee on Crime and Drugs Senator Arlen Specter (D-PA) and Ranking Member Senator Lindsey Graham (R-SC), and Judiciary Committee member Senator Orrin G Hatch (R-U).

It will create a blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system.  The Commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies.  After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.  The bill has been endorsed by approximately 100 organizations.

A copy of the bill will be available at the press conference.

I think much good could come from having a new "blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system," especially if this National Criminal Justice Commission is effectively staffed and funded.  But I am fearful that the creation of a new study commission, who won't issue recommendations until probably 2012 or beyond, could become a distraction from the critical important federal criminal justice reform work that could and should be getting done right now.

Indeed, this very press release has me wondering (again!) about the status of crack/powder sentencing reform in the House.  It has now been more six weeks since the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  I had heard rumors that similar compromise legislation might get through the House in April, but these rumors now seem unlikely to become a reality. 

In light of this background, I am not especially excited by House members getting all excited about the introduction of the National Criminal Justice Commission Act of 2010.  I do not think this development is itself a reason for criticism, but it does remind me of how important it is for those interested in serious criminal justice reform to keep their eyes on the prize.

Some related recent and older posts:

• Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
• Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
• Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
• Will and should House adopt the crack/powder reform compromise passed by Senate?
• Different editorial perspectives on crack reform compromise
• Questions about the "when" and "now what" for crack/powder sentencing reform
• What's the status of crack/powder sentencing reform in the House?
• "A Blue-Ribbon Look at Criminal Justice" 
• "Senate Committee Passes National Criminal Justice Commission Act of 2009"
• Senator Jim Webb takes his concerns about prison nation to the next level
• Senator Webb's bill for criminal justice reform commission getting some House attention

Will and should House adopt the crack/powder reform compromise passed by Senate?

As detailed in this post, late yesterday the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  This compromise legislation as passed by the Senate cuts the ratio to roughly 18:1 and does so by keeping powder sentences the same and essentially reducing the severity of the mandatory minimums for crack offenses.  As I have noted in prior posts, most advocates for crack/powder sentencing reform view this Senate compromise as an improvement over the status quo, but a lot less than was sought/hoped by reform advocates.

The next big question, then, is whether the House will adopt this compromise so that it can become law (and, relatedly, whether the most vocal advocates for more significant reform will urge the House to adopt or reject this Senate passed reform).  Thought I can make lots of strong arguments for why the House should not be content with what has passed in the Senate, I also think that getting even some little reform done ASAP is now a lot more important than getting the best possible reform. 

In short, to answer the normative question in the title of this post, I think the House should adopt the crack/powder reform compromise in the exact form that was passed by Senate yesterday.  (I reach this view in part because, as I will explain in future posts, the US Sentencing Commission could and should "enhance" the impact of this reform through subsequent guideline amendments.)  But I am not sure if the House will, or if others agree that the (less-than) half-a-loaf crack fix passed by the Senate is good enough for now.

Varied reactions to the crack/powder reform work of the Senate Judiciary Committee

I have seen or received lots of distinct commentary in reaction to Senate Judiciary Committee's unanimous vote today to reduce (but not eliminate) crack/powder disparity in federal mandatory sentencing statutes (reported here).  Here is a sampling:

From the Office of Senator Jeff Sessions, here is part of this press release titled "Sessions, Hatch Commend Bipartisan Compromise on Drug Sentencing":

U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, today joined with Sen. Orrin Hatch (R-UT) in commending the unanimous committee approval of a bipartisan compromise bill to address the disparity in the sentencing penalties between crack and powder cocaine...

Sessions said, “This is an important bipartisan compromise and I especially want to thank Chairman Leahy, Senator Hatch, and Senator Durbin for their efforts. I have long believed that we need to bring greater balance and fairness to our drug sentencing laws. But I have also maintained that a guiding principle of that effort must be that we not place any obstacles in front of the police officers and prosecutors fighting every day to keep our communities and their residents safe. Through this change in the thresholds for mandatory minimum sentences, we will be able to achieve needed fairness without impeding our ability to combat drug violence and protect victims. These reforms strengthen our justice system and I hope the full Senate will consider and act on this proposal.”

From the US Department of Justice, here is the full text of this statement from Attorney General Eric Holder:

"There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses, and I have strongly supported eliminating it to ensure our sentencing laws are tough, predictable and fair.

"The bill voted unanimously out of the Senate Judiciary Committee today makes progress toward achieving a more just sentencing policy while maintaining the necessary law enforcement tools to appropriately punish violent and dangerous drug traffickers.

"I applaud the work of the Senate Judiciary Committee, particularly Chairman Leahy, Ranking Member Sessions and Senators Durbin and Graham, in taking such an important step toward reforming our sentencing laws. I look forward to the Senate and the House approving this legislation quickly so that it can be signed into law."

From the blog TalkLeft, here is part of this postfrom Jeralyn titled "Judiciary Committee Waters Down Crack-Powder Cocaine Sentencing Bill":

The 100:1 ratio and mandatory minimum sentences will not be eliminated, but reduced to 20:1. In other words, no equalization. Crack cocaine will continue to carry a penalty 20 times more severe than powder cocaine. Is it an improvement? Yes. Is it good enough? No....

There's more bad stuff in the bill as introduced -- it reeks of Joe Biden-type influences -- increased sentencing guidelines for some drug crimes through application of aggravating factors.

The bill we needed was Bobby Scott's H.R. 3245 which passed the House Judiciary Committee in July. It would have eliminated the "100 to 1" disparity by removing the word "crack cocaine" in the criminal code.

Instead, we get another crime bill with increased penalties and no equalization. Again, while the reduction is an improvement, the bill is a big disappointment.

And last but not least, from lawyer Gary G. Becker, who sent me this passionate e-mail not long after hearing the news:

The Senate Judiciary Committee’s vote to “reduce” the crack cocaine/powder cocaine punishment disparity from 100:1 to 20:1 is a scandalous, racist, and politically motivated act.  In view of the near-unanimous consensus that there is no justifiable basis for punishing crack cocaine more harshly than powder cocaine, and that the 100:1 ratio was both arbitrary and irrational – even DOJ called for elimination of the disparity -- the Senate Judiciary Committee settles on an equally unsupportable, irrational, and arbitrary punishment scheme, one that will disproportionately affect minorities, destroy families, and promote disrespect for the law.

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