Saturday, October 06, 2007

Crack wackiness brewing over impact of crack amendments

As detailed here, this week the US Sentencing Commission posted an important memorandum titled "Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive" (available here).  Families Against Mandatory Minimums is doing a great job covering this story at its website, but FAMM's coverage highlights that a lot of legal wackiness and uncertainty may ensure if and when the amendments become effect and are made retroactive.  Here are the two recent postings at FAMM spotlighting these matters:

Some recent related posts:

October 6, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Thursday, October 04, 2007

USSC analysis on potential crack amendment retroactivity impact

Newly available on the US Sentencing Commission's website is a memorandum titled "Analysis of the Impact of the Crack Cocaine Amendment If Made Retroactive."  This memo, which can be downloaded (slowly) here, "provides a Commission staff analysis of the impact of the crack cocaine amendment (Amendment 9) submitted to Congress on May 1, 2007, if the Commission were to [exercise its authority to allow this amendment to] be applied retroactively to previously sentenced defendants."  Here is one of many fascinating findings discussed in this memo:

This section of the memorandum provides an analysis of the estimated impact of the Commission's 2007 crack cocaine amendment on those offenders incarcerated as of November 1, 2007 in the federal prison system should the Commission vote to make that amendment retroactive. This analysis was prepared by the Commission's Office of Research and Data (ORD). ORD estimates that 19,500 offender sentenced between October 1, 1991 and June 30, 2007 ... would be eligible to seek a reduce sentence if the Commission were to make the 2007 crack cocaine amendment retroactive. These offenders would be released over a period of more than three decades.

October 4, 2007 in New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack

Monday, October 01, 2007

Latest FSR issue covers crack sentencing

I am pleased to report that, just in time for the Kimbrough SCOTUS oral argument (background here), the latest issue of the Federal Sentencing Reporter addressing crack and mandatory minimum sentencing has gone to press.   The opening commentary to this FSR issue, which I co-authored with Steve Chanenson, is entitled "Federal Cocaine Sentencing in Transition" and can be downloaded below.

The full contents of this latest FSR issue are listed below and should be accessible electronically here very soon. (The Federal Sentencing Reporter can be ordered on-line here.)




October 1, 2007 in New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

Friday, September 28, 2007

"Crack Sentencing Is Wack"

05haringspanThe title of this post is the title of this new Slate commentary by Harlan Protess.  Here are some snippets:

In 1986, artist Keith Haring painted a mural called Crack Is Wack on the wall of a handball court in Manhattan.  Its message sums up the attitude of the late 1980s, when Congress was driven to pass new laws punishing crack offenses much more harshly than crimes involving powder cocaine.  For most of the time since, judges, academics, defense lawyers, and the U.S. Sentencing Commission (the expert agency charged by Congress with establishing fair federal sentencing guidelines) have condemned crack penalties as unfair and unfounded.  Lawmakers, however, have obstinately refused to change them.

And yet, thanks to science, common sense, and the Supreme Court, the vast disparity between crack and powder sentencing is poised to end, or at least change....  On Tuesday, in Kimbrough v. United States, the Supreme Court will hear a challenge to the 1980s sentencing laws and the power of judges to disregard the 100-to-1 ratio so that they can give crack defendants lower sentences.  As Tom Goldstein argues here for Slate, the same majority that prevailed in Booker is likely to give sentencing judges the authority to mete out these reduced sentences.  They still won't be able to go below the mandatory minimums, but above that, they will be able to hand out prison terms shorter than those called for by the 100-to-1 ratio.

September 28, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Obama talking about serious sentencing reform

As detailed in a number of posts below, I have been wondering about when some of the presidential candidates would start talking seriously about sentencing reform.  According to this press release, which is entitled "Obama Outlines Plan to Address Disparities in America's Justice System," today is the day for Barack Obama.

Obama is giving a speech at Howard University, and the press release details these notable feature's of Obama's plan for "ensuring that every citizen is afforded equal and fair justice under the law":

With last week's Jena 6 march and next week's SCOTUS argument in Kimbrough, the timing for this speech seems just right.  It will be especially interesting to see what sort of national reception it gets and whether these issues have any long-term traction.

UPDATE:  A lengthy 7-page official document from the Obama campaign covering a range of equal justice issues can be accessed at this link.

September 28, 2007 in Campaign 2008 and sentencing issues, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (33) | TrackBack

Monday, September 24, 2007

New magazine launches with piece on crack sentencing

I received word today of the launch of a new publication, Human Nature magazine, which can be accessed at this link.  Included in a number of intriguing looking articles in the first issue is this piece about mandatory minimum crack sentencing, which is authored by publisher/executive editor Christopher Windham.  The story is entitled "Doing The Right Thing: After 20 Years, the Debate Over Mandatory Minimum Sentencing Laws for Cocaine Heats Up," and here is one of many notable passages:

The federal mandatory minimum sentencing laws have also had a profound affect on African-American women.  For example, the incarceration rate for African-American women for all crimes has increased by 800% since 1986 compared to 400% for women of all ethnicities, largely due to drug convictions. Since federal judges have little or no flexibility to consider the reasons why women are involved in the drug trade, such as domestic violence or financial dependency, they often receive the same or harsher sentences as major drug traffickers, policy experts say.

September 24, 2007 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Friday, September 21, 2007

So much for Senate action in September on crack sentencing

As some readers may recall, this post earlier this month spotlighted that the US Senate appeared poised to have a September hearing on crack sentencing.  I believe this hearing was originally scheduled to be this week, but they did not happen.  I have heard various rumors providing various reasons concerning why the crack hearing was put off and concerning whether and when it might still take place.

As I noted in my prior post, I would be surprised to see Congress make any dramatic federal sentencing changes anytime.  Nevertheless, I think the extraordinary energy (and national media) devoted to concerns about racial injustice in the criminal justice system reflected in the Jena 6 March yesterday could possibly bring the crack/powder discussion back into congressional view.

Some related posts on crack and politics:

September 21, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, September 05, 2007

Stanford event on "Mandatory Minimums and the Crack/Powder Sentencing Disparity"

Later this week, I am heading out to California because I have the honor of participating in another of the Stanford Criminal Justice Center's Executive Sessions on Sentencing and Corrections.  Unfortunately, my teaching schedule prevents me from getting out to Stanford Law School in time for this exciting event scheduled for tomorrow afternoon:

"Mandatory Minimums and the Crack/Powder Sentencing Disparity"

Featuring The Honorable Paul G. Cassell and The Honorable William K. Sessions III

In 1986, Congress enacted the Anti-Drug Abuse Act, instituting mandatory penalties for crack cocaine offenses that have been characterized as the harshest in history.  The law established drastically different penalty structures for crack and powder cocaine offenses, based on the understanding that crack cocaine was more dangerous than powder cocaine and posed a greater threat to public safety.  This is what has come to be known as the 100-to-1 sentencing disparity.  The law's effect on the disproportionate number of African Americans in United States prisons is staggering. While drug use rates are similar among all racial groups, African American drug offenders have a twenty percent greater likelihood of receiving a prison sentence than their white counterparts and African Americans now serve virtually as much time in prison for drug offenses as whites serve for violent offenses.

This year the United States Sentencing Commission took action by amending the federal sentencing guidelines to lower guideline sentences for crack cocaine offenses.  However, the Commission does not have the authority to repeal the mandatory minimum penalties for crack cocaine sentences. There are currently six bills before the United States Congress addressing this issue and the Sentencing Commission recommended in May of 2007 that Congress take action this year to remedy this gross disparity.  In addition, the U.S. Supreme Court accepted certiorari in the case of Kimbrough v. United States, a crack cocaine possession case in which a federal judge imposed a below-guidelines sentence, stating that the sentence called for under the guidelines was higher than necessary to do justice in this case.

Registration is free at this link.

September 5, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Saturday, September 01, 2007

A September Senate hearing on crack sentencing

I just received an e-gram from FAMM highlighting that the US Senate appears poised to have hearing on crack sentencing.  Here is the FAMM's account:

Senate to hold first-ever hearing on crack cocaine: For the first time in 20 years, crack cocaine sentencing is a major issue in Congress.  Three bills in the U.S. Senate and two bills in the House of Representatives are vying for support.  The Senate bills would all reduce the sentence for crack cocaine, and so much interest has been generated that the Senate will hold the first ever hearing on crack cocaine on September 18.

FAMM here has lots of details about the bills, and I am sure they will cover the hearings effectively.

Ultimately, I would be surprised to see Congress make any dramatic changes soon, but the nature and tenor of these hearing could surely impact how others handle various on-going sentencing issues.  For example, if there are broad expressions of support at these hearings from the US Sentencing Commission's new crack amendments, the USSC might be more inclined to make these amendments retroactive.  Also, all this activity seems sure to impact the Supreme Court's work in Kimbrough, the crack sentencing case to be heard next month.

Some recent related posts:

September 1, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Thursday, August 30, 2007

FAMM alert about the USSC's crack amendments

I just noticed on the website for Families Against Mandatory Minimums this interesting warning:

It has come to FAMM's attention that some in the legal profession (and perhaps some non-lawyers as well) are soliciting business by telling prisoners and their family members that the proposed crack amendment will be made retroactive.  We encourage our members to be cautious when approached by anyone promising to bring a loved one home from prison sooner.

This warning comes with a link to this effective document entitled ""Attention FAMM Members: Proposed crack amendment is no guarantee of going home early."  Here is how this document starts:

In May of this year, the United States Sentencing Commission proposed an amendment to the sentencing guidelines that would reduce the base offense levels for crack offenses by two levels of severity. This means that crack sentences imposed on or after November 1, 2007 will be, on average, 16 months shorter than crack sentences in similar cases that were imposed before that date.

FAMM supported this proposed amendment on behalf of its members and continues to do so, knowing that changing the crack guidelines will result in fairer sentences for thousands.  While this is far short of the real sentencing reform we seek, it is still a significant positive development.  The amendment will go into effect on November 1 unless both the Senate and the House of Representatives vote to reject it.  We do not expect Congress to reject the amendment.  However, there are several important limitations on the effect of the amendment that our members should be aware of.

August 30, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Thursday, August 23, 2007

ABA makes pitch for USSC crack amendments to be made retroactive

Yesterday, the American Bar Association submitted a letter regarding the US Sentencing Commission's 2008 priorities.  The ABA letter, which is mostly focused on arguing that the USSC should make its new crack amendments retroactive, can be downloaded below.  Here is a snippet:

Over the years, the Commission has amended the drug guideline with the effect of lowering sentences in particular drug cases, and in each instance, has made the amendment retroactive by including it in the list of amendments eligible for reduction under Section 3582(c)(2)....

The Commission’s current proposed amendment to Section 2D1.1 -- that would modestly reduce offense levels across the board for crack cocaine -- is intended as an interim measure to alleviate the “urgent and compelling” problems associated with the 100-to-1 crack-to-powder ratio.  At the very least, principles of fairness, consistency, and proportionality should likewise lead the Commission to include this amendment in the list of amendments eligible for reduction under Section 3582(c)(2).  The relevant factors weigh in favor of making the amendment retroactive:

Since 1995, the Sentencing Commission has consistently taken the position that the 100:1 ratio was unwarranted from its inception, and has a racially disparate impact.  The Reason for the May 11, 2007 Amendment notes that the Commission set drug quantity thresholds to produce base offense levels corresponding to guideline ranges above the statutory mandatory minimum penalties.

The amendments to the drug guidelines related to LSD, marijuana, and oxycodone and made retroactive have generally benefited caucasian defendants. Given the racially disparate impact of the 100:1 ratio and the public perception that our drug laws are racially discriminatory, making this amendment retroactive is the only fair and principled course.

Download aba_letter_ussc_08_priorities_82207_1.doc

August 23, 2007 in New USSC crack guidelines and report | Permalink | Comments (7) | TrackBack

Wednesday, August 15, 2007

Oh geez, who's briefing Obama on criminal justice issues?

This strong post by Jeralyn at TalkLeft points to this notable Boston Globe commentary by Derrick Jackson entitled "Obama's caution on drug sentencing."  As Jackson suggests, Barak Obama's latest comments about crack sentencing suggest both an ignorance and an apathy that I find quite surprising and disappointing.  Here are the parts of the Jackson column I find so troubling:

[Obama's] vacillation [on criminal justice issues] became evident as he kept talking about crack-vs.-powder sentencing, which has come to symbolize racial injustice in criminal justice.  He said that if he were to become president, he would support a commission to issue a report "that allows me to say that based on the expert evidence, this is not working and it's unfair and unjust. Then I would move legislation forward."

That was a puzzling statement because the US Sentencing Commission, created by Congress in 1984, has long said the system is not working and reaffirmed in April that the 100-to-1 ratio "significantly undermines" sentencing reform.

Obama asked if he could make a "broader" point. "Even if we fix this, if it was a 1-to-1 ratio, it's still a problem that folks are selling crack.  It's still a problem that our young men are in a situation where they believe the only recourse for them is the drug trade.  So there is a balancing act that has to be done in terms of, do we want to spend all our political capital on a very difficult issue that doesn't get at some of the underlying issues; whether we want to spend more of that political capital getting early childhood education in place, getting after-school programs in place, getting summer school programs in place."  Obama claimed, "I'm not suggesting it's an either/or but I'm suggesting that an even higher priority for me is getting young men and increasingly young women to stop getting involved in the drug trade in the first place. And that's going to require pretty heavy lifting.  That's going to require some billions of dollars of expenditure that aren't there right now."

By asking an open question about spending "all our political capital" on eliminating the 100-to-1 ratio, that raises the possibility he will spend little or none on it. By talking about a "broader" prescription of early childhood school programs -- which means nothing to a 17-year-old in jail -- Obama risks flashing a losing card of being nonconfrontational.  President Clinton tried that a decade ago and lost. Obama said he voted in Illinois to stop the perpetration of unjust laws.  Without a stronger voice on 100-to-1, he becomes part of the problem of continually passing criminal laws based on anecdote.

I find this so disappointing because I think effective reform of the federal criminal justice system (including its deep racial issues) needs an effective and forceful moral leader, not another unprincipled political strategist --- like Bill Clinton, who turned the federal criminal justice system to the right more than any of his Republican predecessors.  I was hopeful that Obama might be that leader, but now I fear I may have to look to some of the Republican candidates.  Sigh...

Some related posts:

August 15, 2007 in New USSC crack guidelines and report | Permalink | Comments (18) | TrackBack

Thursday, August 09, 2007

Taking a crack at fairness in crack sentencing

Maththumbnail1 As detailed in this ACLU press release, a "coalition of criminal justice advocacy organizations is launching 'It's Not Fair. It's Not Working,' a national effort to reform the 100-to-1 federal sentencing disparity ratio between crack and powder cocaine."  Here is more from the press release:

"All Americans want to live in drug-free communities.  Unfortunately this law locks up small-time drug users who need to be in treatment programs instead of prison," said Nkechi Taifa of the Open Society Institute (OSI).  Other coalition partners include The Sentencing Project, American Civil Liberties Union (ACLU), and the Drug Policy Alliance (DPA)....  The coalition will release a series of ads that focus on the disparity in sentencing between crack and powder cocaine.

More information is available at this link from The Sentencing Project, which shows some of the print ads that are part of this campaign.

August 9, 2007 in New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

Monday, July 30, 2007

USSC seeking comments on priorities and retroactivity

As detailed at the official homepage of the US Sentencing Commission, the USSC has just officially put out these two important federal register notices:

Though the proposed priorities of the USSC are always important, the retroactivity issue is especially huge because it could impact literally tens of thousands of federal defendants now in prison.  As detailed here, some judges are already advocating making the crack changes retroactive.

July 30, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Thursday, July 26, 2007

A judicial pitch for making crack reductions retroactive

Sentencing Hall of Famer Judge Lynn Adelman has kindly allowed me to post the letter he recently sent to the US Sentencing Commission urging the USSC to make its new crack guidelines retroactive.  Here are excertps:

The Sentencing Commission recently took the estimable step of proposing guideline amendments to reduce the sentencing ranges for cases involving crack cocaine.  The Commission also produced another detailed report on cocaine and federal sentencing policy, reiterating its consistent position that the 100:1 disparity between crack and powder cocaine is unjustified and undermines the objectives of the Sentencing Reform Act.  The amendments will, as you know, go into effect on November 1, 2007, absent congressional disapproval.

The Commission has not yet decided whether to make those amendments retroactive pursuant to U.S.S.G. § 1B1.10.  As you know, under 18 U.S.C. § 3582(c), district courts are authorized to reduce previously imposed terms of imprisonment that were based on a sentencing range subsequently lowered by the Commission, but only if the Commission specifically designates the amendment for retroactive application. I urge the Commission to list the crack cocaine amendment as one of those retroactively applicable under § 1B1.10(c)....

It may be argued that allowing retroactive application of the crack amendment will open the district courts to a flood of § 3582(c) motions.  Such concerns are overstated.  Motions under § 3582(c) may be resolved without a hearing, and without the presence of the defendant.  See Fed. R. Crim. P. 43(b)(4).  Further, since the court will have already determined drug weight, no additional fact-finding will be required. Finally, even if the Commission does not make the crack amendment retroactive, it seems likely that many prisoners sentenced under the old guidelines will nevertheless seek relief via motions under 28 U.S.C. §§ 2255 or 2241, or papers bearing other, more creative labeling.  Even if retroactive application does create more work for the courts, it seems well worth it to achieve fairer, more proportionate sentences, which actually promote respect for the law.

Download hinojosa_letter.rtf

July 26, 2007 in New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

Monday, July 09, 2007

An effective review of federal crack sentencing issues

A helpful reader alterted me to this new article on-line at the American Prospect discussing crack sentencing issues and developments in this federal system.  Here are snippets:

A flurry of recent legislative activity may finally signal an end to what critics call a blatantly racist federal sentencing policy.  Now over 20 years old, the sentencing guidelines set forth in the Anti-Drug Abuse Act of 1986 mandate a minimum incarceration of five years for possession of five grams of crack cocaine -- the same penalty that is triggered for the sale of 500 grams of powder cocaine, or 100-times the minimum quantity for crack....

This year, as it has four times in the past two decades, the [US Sentencing] Commission recommended that lawmakers repeal the crack sentencing mandate. In a 202-page report released on May 15, the Commission maintained its consistently held position that the 100-to-1 drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act and urged Congress to take legislative action to reform the system.  Some lawmakers appear to have finally taken that message to heart.

Related posts on crack work:

July 9, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Monday, June 11, 2007

SCOTUS scratches my sentencing itch, but also has me scratching my head

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here).  Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit.  But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable.  In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit.  Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence?  I am still scratching my head, but let me venture a few ruminations:

1.  Based on the 1996 Koon decision, I have long thought that even anti-Blakely Justices favor significant district court discretion over circuit court lawmaking in the sentence arena.  Consequently, I have always expect that the post-Booker cases would champion district court discretion (and perhaps fault excessive circuit court intervention) in sentencing determinations.

2.  The "problem" with Rita is that championing district court discretion by affirming the sentence imposed by the district court also serves, at least indirectly, to praise the guidelines.  (And, conversely, reversing in Rita might suggest reasonableness review should be aggressive.)

3.  Without the Claiborne companion, the Justices may be worried that Rita alone wont allow the development of the complete message they wish to send to lower courts about post-Booker doctrines and practices.

4.  But all the timing (and the many options) have me really puzzled.  Whatever the court does with Rita, the holding and the dicta will reverberate through the federal sentencing world ASAP.  And yet, as the Rita pebble (or boulder) ripples through the federal sentencing pond, everyone will know that the Justices have just picked up two more rocks to throw into the pond.  And, under usual timelines, we shouldn't expect rulings in Gall and Kimbrough until perhaps January 2008 or later.

5.  Sadly, I am now worried we might know who's the next President before we know what Booker really means for federal sentencing.  Oy vey.... though I guess it's good for my business.

June 11, 2007 in Booker in the Circuits, Claiborne and Rita reasonableness case, Federal Sentencing Guidelines, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, May 28, 2007

Clear (near) consensus on crack corrections

At the National Seminar on the Federal Sentencing Guidelines in Salt Lake City last week (reviewed here and here), I heard lots of praise and virtually no criticisms regarding the US Sentencing Commission's important recent work on crack sentencing (details here).  And two thoughtful recent newspaper commentaries add to the seemingly consensus view that Congress need to build upon the USSC's work to further reform the crack-powder disparity:

However, as Smith's piece highlights, the consensus that Congress should do something breaks down when it comes to exactly what Congress should do.  As a piece in CQ Today recently highlighted, there are many competing views and proposals concerning how the crack-powder disparity should be addressed.

May 28, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Monday, May 21, 2007

The intriguing new politics of crack sentencing

As I have highlighted here and here, the political reverberations of the US Sentencing Commission's new crack work (basics here and here) are hard to predict.  Helpfully, Seth Stern has a a great new piece in CQ Today entitled "Momentum Builds for Narrowing Powder, Crack Cocaine Sentencing Gap," which looks at some of the political dynamics.  Here are some interesting excerpts:

African-American lawmakers and liberal groups have long decried the fact that it takes 100 times more powdered cocaine than crack to trigger lengthy mandatory minimum prison sentences, a disparity that disproportionately affects minority defendants. A combination of factors — including the Democratic takeover of Congress and growing Republican interest in alternatives to lengthy prison sentences — is helping create momentum for narrowing the differential first enacted 21 years ago....

Last week, Jeff Sessions, R-Ala., one of the most conservative members of the Senate Judiciary Committee, announced plans to introduce legislation that would raise the quantity of crack and lower the quantity of cocaine that would trigger a mandatory minimum sentence so that the ratio would be 20-1, rather than 100-1.   Sen. Orrin G. Hatch, R-Utah, is expected to introduce an alternative that would reduce the ratio to 20-1 by only increasing the crack trigger, an approach favored by liberal groups that don't want any changes to result in lengthier sentences for cocaine defendants.

While the Senate Judiciary Committee has not settled on a single approach, Hill staffers and lobbyists for several groups expect Joseph R. Biden Jr., D-Del., chairman of the Judiciary Subcommittee on Crime and Drugs, to introduce legislation in coming weeks that would set the ratio lower than 20-1.

The sticking point may be on the House side, where members of the Congressional Black Caucus, including Robert C. Scott, D-Va., chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, have long insisted that the triggers for crack and cocaine be equalized.  "The facts haven't changed," Scott said. "There's no justification for any differential." Charles B. Rangel, D-N.Y., has introduced a bill (HR 460) that would make them equal.

But even if House Democrats compromise, getting a bill passed in that chamber might still be difficult, says one Republican staff member familiar with the issue.  "I don't think the Democrats are going to push this issue coming into 2008 unless they get a lot of Republicans on board, and I don’t think they will," the staff member said....

The Bush administration has maintained that it prefers to consider the crack-cocaine disparity as part of a broader review of sentencing policy. That would probably include an effort to curb the discretion the Supreme Court gave federal judges when it ruled that the federal sentencing guidelines are advisory rather than mandatory.

Some related posts on sentencing politics:

May 21, 2007 in New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Sunday, May 20, 2007

Seeking rulings, filings, commentary on the USSC's new crack work

There are, on average, over 100 crack offense sentencings in federal courts each week.  Thus, the US Sentencing Commission's new crack guidelines (basics here) and new report criticizing the old crack guidelines (basics here) ought to be immediately impacting at least some of the large number of on-going crack sentencing cases (see my commentary here and here).

I have not yet seen a ruling impacted by the USSC's new crack work, but I imagine some lawyers have at least sought continuances in light of the new USSC's data and recommendations.  I'd be grateful if folks would report or send me information about ruling or even lawyer filings that reflect the USSC's latest crack work.

In addition, the next issue of the Federal Sentencing Reporter will be discussing and assessing the USSC's latest work in this arena.  Anyone interested in developing a short commentary on crack sentencing topics should try to get me a draft before the end of this month so we can stay on-time for a June publication.

Some recent related posts:

May 20, 2007 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Wednesday, May 16, 2007

Intriguing state-federal drug sentencing realities

The US Sentencing Commission's new crack report (basics here, reactions here) is fascinating (and also mind-numbing) is so many ways.  Especially intriguing is Chapter 5, which focuses on state sentencing realities and has a final section on the interaction of federal prosecutorial decisions and state penalties.  That section begins with these insights:

Federal law enforcement and judicial resources are too limited to process all drug trafficking offenses at the federal level. Only a small minority of all drug offenses are prosecuted federally.  During the last decade, there have been between one and one and one-half million arrests for drug violations annually, and state courts have imposed sentence for about one-third of a million drug convictions annually.  By contrast, 25,013 federal offenders were sentenced under the primary drug trafficking guideline in fiscal year 2006.   In fact, one of the stated goals of the 1986 Act was to "give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources."

Because the states generally have not adopted the federal penalty structure for cocaine offenders, the decision whether to prosecute at the federal or state level can have an especially significant effect on the ultimate sentence imposed on an individual crack cocaine offender.  Differences in federal prosecutorial practices nationwide occur for a number of reasons.  For example, federal resources in a specific jurisdiction may be prioritized toward a specific drug type that is particularly problematic for that jurisdiction.  The Department of Justice reports that the comparative laws in a jurisdiction also play an important role in determining whether a particular case is brought in federal or state court.

The last sentence of this quote is especially notable given that the Justice Department regularly argues against district judges considering comparative state realities at federal sentencing.  Apparently DOJ thinks it is "important" for federal prosecutors to consider comparative state dynamics (behind closed doors and without any kind of judicial review), and yet argues that it is wholly improper for federal sentencing judges to even consider comparative state dynamics (on the record and subject to judicial review).

May 16, 2007 in New USSC crack guidelines and report | Permalink | Comments (5) | TrackBack

More reactions to the USSC crack report

Public policy groups that have long assailed harsh crack sentencing terms have issued press releases in response to the US Sentencing Commission new report on federal cocaine sentencing (basics here):

The current sentencing structure has had a disproportionate and unfair impact on African-American and low income communities," said Caroline Fredrickson, director of the ACLU Washington Legislative Office, "and we’re encouraged that the U.S. Sentencing Commission has once again acknowledged this fact....  We urge Congress to put aside politics and act now to fix this discriminatory federal drug sentencing policy."

These reactions are not surprising or especially noteworthy.  For the future of federal drug sentencing, it will be much more important how policymakers and courts, rather than long-time advocates, react to the report.  On that front, I was very encouraged by this effective NPR piece on the new USSC report, which includes this quote from Republican Senator Jeff Sessions:

"It's past time [to reduce the disparity between crack and powder cocaine sentences] actually," Sessions says.  "Because the penalties on crack cocaine are extraordinarily heavy — too heavy to be justified as public policy."  Sessions said his colleagues should be open to reducing penalties downward when the sentencing commission recommends it.

UPDATE:  I just saw a copy of an article on the USSC report in the Daily Journal, and it has these additional reactions from key players:

Sen. Patrick J. Leahy, D-Vt., chairman of the Senate Judiciary Committee, welcomed the report's findings Tuesday, describing them as "an important first step" in correcting the disparity. "For far too long, the federal crack/powder sentencing laws have created an injustice in our nation," he said. Leahy said he hopes that federal prosecutors will focus more on drug kingpins....

      The Justice Department historically has opposed making changes to the sentencing guidelines.  Justice Department spokesman Bryan Sierra said the agency is "willing to discuss the disparity in the ratio for sentencing between crack and powder cocaine," but he added that the department believes that "it should be done in the broader context of sentencing reform."

May 16, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

An initial reaction to the USSC crack report

Fellow sentencing guru Mark Osler sent via e-mail this first-cut reaction to the Sentencing Commission new cocaine report (basics here):

A federal defender, one of the smartest people I know in sentencing, called me this afternoon to talk about the proposed crack guideline amendments.  He got my voice mail, and left this provocative message: "What's going on?! These things are all over the place!"

He's right, and the Sentencing Commission's report on "Cocaine and Federal Sentencing Policy" (released about the same time as that call) does not do much to clear things up.  The USSC's report is chock-full of great data and analysis.  However, when the rubber hits the road, the Commission makes just three recommendations to Congress, on page 8: First, increase the amount needed to trigger mandatory minimums for crack; second, repeal the mandatory minimum for simple possession; and third, don't solve the problem by lowering the thresholds for powder cocaine which trigger mandatory minimums.

I'm all for these recommendations.  However, they leave open a key question: If we leave behind the 100-to-1 ratio, what will take its place?  This crucial question is more complex than it may at first appear — what is at issue is not just what other ratio we should employ, but whether we should tie crack sentencing to powder cocaine at all. 

Which brings us back to the call I received from my friend the public defender.  He was very happy that the proposed guidelines lowered the crack ranges, but noticed that they were no longer tied to any ratio at all relative to powder cocaine.  For example, at level 28 of those proposed guidelines, the ratio is 17.5-to-1, at level 26 it is 25-to-1, and at level 24 it shoots up to 80-to-1.  Obviously, the sentencing commission is comfortable not just with adjusting the ratio, but with throwing out the idea of a ratio altogether.  In keeping with this new outlook, the key recommendations of the new report to Congress do not suggest 20-to-1 or any other ratio to direct Congressional reforms, unlike the 2002 report.

It is a brave new world, if we might be free not only from the 100-to-1 ratio, but the idea of ratios controlling the way we think about crack sentencing.

May 16, 2007 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Monday, May 14, 2007

Time to get crackin' on crack sentencing reform

Tomorrow the US Sentencing Commission is scheduled to send its new cocaine sentencing report to Congress (background here and here)  I have been disappointed (though I suppose not surpised) that the USSC's new crack guideline sentencing amendment has gotten very little attention so far.  I am hopeful that the USSC's report, which should be much more media-friendly, will get these issues into the public dialogue.

Helpfully, the USSC has this reader-friendly version of all its new proposed guidelines amendments, and pp. 66-67 of the document provides helpful background on the reasons for the crack amendment.  Among other details, these reasons provide this account of exactly what the practical result of the new amendment should be:

The Commission's prison impact model predicts that, assuming no change in the existing statutory mandatory minimum penalties, this modification to the Drug Quantity Table will affect 69.7 percent of crack cocaine offenses sentenced under §2D1.1 and will result in a reduction in the estimated average sentence of all crack cocaine offenses from 121 months to 106 months, based on an analysis of cases sentenced in fiscal year 2006 under §2D1.1 involving crack cocaine.

In other words, roughly 70% of crack sentences will be reduced, on average, from just over 10 years to just under 9 years.  This many not seem like much of a tangible change, but I have explained here why the USSC's actions here are potentially so significant.

Related posts on the USSC new crack work:

May 14, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Saturday, May 12, 2007

Conclusive proof old crack guidelines unreasonable

Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments.  (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)

The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable.  Consider these paragraphs (and especially the highlighted sections):

Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.

The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems.  The Commission has concluded that the manner in which the Drug Quantity Table in §2D1.1 was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio....

Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses.  The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems.

This fully up-to-date and expert analysis from the USSC provides, in my view, conclusive evidence that a sentence imposed within the old crack guidelines is NOT likely to serve the purposes of punishment Congress set forth in 3553(a)(2).  Consequently, each every defendant sentenced within the old crack guidelines has a very strong basis for arguing on appeal that his sentence is unreasonable (and certainly that a presumption of reasonableness should not apply to any within-the-old-crack-guideline sentence).

Related posts on the USSC new crack work:

May 12, 2007 in Claiborne and Rita reasonableness case, Drug Offense Sentencing, Federal Sentencing Guidelines, New USSC crack guidelines and report, Race, Class, and Gender | Permalink | Comments (4) | TrackBack

Tuesday, May 01, 2007

USSC sends amendments to Congress

Today the US Sentencing Commission sent to Congress a set of guideline amendments, which were previewed in this press release and all of which can be found in (reader-unfriendly form) at this link.  FAMM has this effective summary of the highlight items: "an amendment to improve crack cocaine sentences and a policy statement to give sentencing courts guidance on granting release to prisoners for extraordinary and compelling circumstances (sometimes referred to as compassionate release)."  BTL also has this quick coverage of the crack sentencing issues, which I have covered extensively in these recent posts:

May 1, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Sunday, April 29, 2007

Recapping the big crack news

Anyone not keeping up with sentencing news late on Friday nights should be sure to start the new week noting the big crack sentencing developments coming from the US Sentencing Commission.  Though this story will unfold in many dimensions in the weeks and months to come, I spent the weekend clacking ought a few posts on the USSC's new crack work:

April 29, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Previewing the (quite unpredictable) new federal politics of crack sentencing

As I mentioned in this post, the usual federal politics of crime and punishment are all mixed up these days.  Consequently, political reactions to the US Sentencing Commission's new crack work (basics here) are not easy to predict. 

Just a few years ago, "tough on crime" federal politics produced the ugly Feeney Amendment in 2003, and few politicians would dare publicly support any measure to lower any federal sentences.  But a whole lot has changed in only four years.  President Bush has championed America as a "land of second chance," the Justice Department is no longer viewed as a paragon of virtue, both houses of Congress are now controlled by Democrats, and many leading Republicans (including presidential candidates Sam Brownback and Mike Huckabee) have vocally endorsed a kinder, gentler criminal justice system.

So what does all this mean for the US Sentencing Commission's new crack guidelines and the USSC's forthcoming report (which will urge further reforms)?  To begin, the new politics in part it explans why the USSC is finally moving forward on these issues: the USSC insiders surely know that new crack guidelines and suggestions for other reforms will get a warmer reception now than perhaps at any other time in the last decade. 

But exactly how warm will that reception be?  Is there a real chance that Congress will reform the crack mandatory minimums int he months ahead?  Might there even be a broader movement to eliminate all federal mandatory minimums?  Or will "tough on crime" rhetoric take center stage again?  Will any presidential candidates appreciate that the enfranchisement of felons in swing-state Florida could  make these issues very important in the 2008 campaign?  Only time will tell.

Some related posts on modern sentencing politics:

April 29, 2007 in New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Saturday, April 28, 2007

How will the new USSC crack work impact present (and past) cases?

In this official press release, the US Sentencing Commission explains not only that it has amended the crack guidelines to lower applicable sentence ranges, but also that a forthcoming report "will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere" (basics here).  These developments should have a profound impact on all on-going crack cases and may lead defendants still serving terms under the old crack guidelines to seek reductions in their sentencing terms.   However, because of Booker and various retroactivity rules, legal uncertainty will surely surround whether and how the USSC's new crack work will impact present and past cases.  Let's start at the top:

The Supreme Court:   As noted here, the Supreme Court has pending before it a crack-sentencing case, Claiborne v. US.  In Claiborne, the district court concluded the old crack guideline range was too harsh, but the Eighth Circuit declared unreasonable the selected below-guideline sentence.  Under the new crack guideline, Mario Claiborne's guideline range would be lowered, but the district court's selected sentence would still be below the new sentence range.  Whether or not the Justices define reasonableness review in guideline-centric or 3553(a)-focused terms, the new crack guideline and the USSC's forthcoming report surely could (and likely should) impact its work in Claiborne.

The Circuit Courts:  I have long thought that the USSC's "consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives" should be sufficient to render the old crack guideline presumptively unreasonable in light of the provisions of 3553(a).  Nevertheless, circuits have applied their presumption of reasonableness to crack sentences; indeed, to date, no circuit has reversed a single within-guideline crack sentence as substantively unreasonable. There now must be hundreds of within-the-old-guideline crack sentences currently on appeal that, in light of the USSC's new work, can no longer be simplistically viewed as reasonable simply because they are within the old guideline range.  Arguably, in light of the USSC's new work, circuit courts ought to remand for resentencing every within-the-old-guideline crack sentence currently on appeal.

The District Courts:  More than 100 crack sentences are imposed each week in the federal sentencing system.  Technically, the USSC's new crack guideline does not become official until November 1.  Then again, technically, all the guidelines are merely advice after Booker.  I see no obvious reason why the district court ought not "consider" the very latest guideline wisdom from the Sentencing Commission even though its advice is not yet "officially" the (advisory) law.  (I have been told that the last significant USSC guideline sentencing reduction (involving the immigration guideline in 2001) led many district courts to just continue sentencing until the new guideline became officially effective.  But that was, of course, before Booker changed the legal status of the guidelines.)

Past casesWhat the new USSC crack work means for current cases is complicated enough, but what it might mean for past cases is even more intricate.  The USSC can (but rarely does) make its amendments retroactive.  This official press release does not address this issue, but currently incarcerated crack offenders will surely want to do so ASAP.   (I would guess there are perhaps as many as 50,000 federal offenders currently serving terms under the old crack guidelines.)  I trust the USSC has thought through some of these retroactivity issues, and I am hopeful that its forthcoming report will provided some needed guidance on what should happen to defendants sentenced under the old unjust guidelines.

Recent posts on the USSC's new crack work:

April 28, 2007 in New USSC crack guidelines and report | Permalink | Comments (20) | TrackBack

Why the USSC's new crack work is soooooo significant

My mind is still reeling thinking about the significance and potential ripple effects of the US Sentencing Commission's new crack guidelines and its forthcoming cocaine sentencing report (basics here).  This important issue has been stuck in a political stalemate for over a decade; the stalemate has now been (partially) broken at an especially interesting moment in the evolution of the federal sentencing system.  Only a series of posts will allow me to detail fully why the USSC's relatively small change in the crack guideline is such a big deal, but let me get a running start here:

1.  The basic numbers:  As detailed here, in FY 2006 over 5,500 federal defendants were sentenced to long federal prison terms for crack offenses.  Though some crack defendants received statutory minimum sentences (which the new guidelines do not change), it's likely the new guidelines could directly impact more than 4,000 federal sentencing cases every year.  I doubt that any other single guideline amendment has ever had so broad an impact.

2.  A special case-specific moment:  The Supreme Court has pending before it a crack-sentencing case, Claiborne v. US, although the district court in that case imposed a below-guideline sentence (which the Eighth Circuit reversed as too short).  Though this USSC's new crack work need not directly impact the Supreme Court's assessment of broader Booker issues, the fact that Mario Claiborne's guideline range would be lower under the new crack guidelines could surely impact some Justices' perspectives.  Also there are likely thousands of other crack sentencing cases "in the pipeline" that could and should be impacted by the USSC's new crack work (more on this in a future post).

3.  A special structural moment:  The usual politics of crime and punishment are all mixed up these days.  The Justice Department is a mess with all the heat on AG Alberto Gonzales.  Many members in the new Congress, especially new leaders in the House who are knowledgeable on these topics, seem unlikely to respond to the USSC's work with tough-on-crime rhetoric.  And everyone running for President in the Senate should realize that many voters understand that crack sentences, especially for non-violent first offenders, were too long.  In other words, this is a special moment for the US Sentencing Commission to champion smart sentencing reforms, and it is heartening to see it start demonstrating some real leadership.

April 28, 2007 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack