Tuesday, August 03, 2010

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

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

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

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

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

August 3, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, July 28, 2010

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:

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.

July 28, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, June 11, 2010

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

June 11, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 26, 2010

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:

April 26, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, March 18, 2010

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.

March 18, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, March 11, 2010

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.

March 11, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9) | TrackBack

Sunday, March 16, 2008

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:

March 16, 2008 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Monday, February 25, 2008

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:

February 25, 2008 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Monday, February 18, 2008

Examining realities of crack sentencing reform

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

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

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

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

February 18, 2008 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, February 13, 2008

Is crack reform to be subject to bargained justice?

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

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

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

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

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

Some recent related posts:

February 13, 2008 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, February 12, 2008

Gearing up for today's Senate crack hearing

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

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

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

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

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

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

Some recent related posts:

February 12, 2008 in New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

Tuesday, February 05, 2008

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

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

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

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

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

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

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

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

Barbara Rothstein, Director, Federal Judicial Center

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

February 5, 2008 in New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Saturday, February 02, 2008

Senate crack/powder sentencing hearing later this month

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

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

February 2, 2008 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Monday, January 28, 2008

Notable new defender resources on crack retroactivity implementation

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

January 28, 2008 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Sunday, January 27, 2008

Viginia is (not) for (crack) lovers

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

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

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

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

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

January 27, 2008 in New USSC crack guidelines and report | Permalink | Comments (6) | TrackBack

Saturday, January 26, 2008

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

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

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

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

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

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

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

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

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

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

January 26, 2008 in New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, January 24, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 24, 2008 in New USSC crack guidelines and report | Permalink | Comments (6) | TrackBack

Tuesday, January 22, 2008

Seeking reports from the "crack amendment retroactivity summit"

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

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

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

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

January 22, 2008 in New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

More crack retroactivity action (and related questions)

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

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

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

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

Some recent related posts:

January 22, 2008 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Monday, January 07, 2008

Important memo analyzing crack retroactivity issues

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

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

January 7, 2008 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack