Sentencing Law and Policy

"Give them McDeath, not McLiberty"

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

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

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

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

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

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

Major media coverage of crack retroactivity decision

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

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

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

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

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

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

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

Some legal particulars around crack retroactivity implementation

In this official press release, the US Sentencing Commission reviews some of the legal particulars involved in its crack retroactivity decision:

Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.  Not every crack cocaine offender will be eligible for a lower sentence under the decision.  A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.  That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety.

The statutory overlay to all this come from this intricate statutory text set out in 18 U.S.C. § 3582(c)(2), which provides:

(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that ... (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

I have added the bold and italics to highlight what seem to be key legal concepts going forward.  Specifically, now that the USSC has made the guidelines retroactive, district courts can entertain what might be called a "modification motions" or a "3582(c)(2) motions" and may reduce a prison term if and when doing so is consistent with the Commission's policy statements (which were apparently issued today and emphasize consideration of public safety).

A few circuit rulings have suggested that full Booker resentencings should be the result of these modification motions, but I am not sure the statutory text supports this view.  That said, though, some defendants may develop creative constitutional or statutory argument to try to max out the possible benefits flowing from the USSC's new guidelines.  Stay tuned.

Official USSC press release on crack retroactivity

The Sentencing Commission's website now has this official press release about today's retroactivity decision.  Here are lengthy excerpts from a thoughtful official explanation of what this means:

The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses.  Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.  Not every crack cocaine offender will be eligible for a lower sentence under the decision.  A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.  That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety....

On November 1, 2007, after a six-month congressional review period, the Commission’s amendment to the Federal sentencing guidelines for crack cocaine offenses took effect. The amendment was intended as a step toward reducing some of the unwarranted disparity currently existing between Federal crack cocaine and powder cocaine sentences. The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders, as this amendment could.

The Commission made its decision on retroactivity of the crack cocaine amendment after months of deliberation and years of examining cocaine sentencing issues.  It solicited public comment on the issue of retroactivity and received over 33,000 letters or written comments, almost all of which were in favor of retroactivity....

The Commission considered a number of factors during its deliberations, including the purpose for lowering crack cocaine sentences, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment.  Mindful of public safety and judicial resource concerns, the Commission today issued direction to the courts on the limited nature of this and all other retroactive amendments and on the need to consider public safety in each case. The Commission delayed the effective date of its decision on retroactivity in order to give the courts sufficient time to prepare for and process these cases.

The Commission’s actions today, as well as promulgation of the original amendment for crack cocaine offenses, are only a partial step in mitigating the unwarranted sentencing disparity that exists between Federal powder and crack cocaine defendants. The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy.

Time for a round of applause and some sympathy

As we await further specifics on the US Sentencing Commission's crack retroactivity decision (which I hope will appear on its website soon), I have to applaud the work of both "USSC"s this week: the rulings in Gall and Kimbrough yesterday by the US Supreme Court struck me as very sound, and the decision today by the US Sentencing Commission to give retroactive effect to its new crack guidelines also seems wise from a number of perspectives.  Both institutions merit special praise for achieving near consensus in its decisions: Gall and Kimbrough were the least divided or divisive sentencing rulings from the Supreme Court in nearly a decade, and the Commission managed to engineer a partial crack fix that garnered broad support and (so far) has not prompted any serious political backlash.

Along with applause for these folks inside the Beltway, everyone should now have lots of sympathy for the judges, lawyers, probation officers and others around the nation who will have to deal with the significant practical fall-out from a historic week of federal sentencing.  Implementing on a case-by-case basis the new crack guidelines to previously sentenced defendants will not be easy and will surely generate complicated legal issues.  Similarly, though Gall and Kimbrough help clarify some additional post-Booker realities, they still leave plenty of questions to consider (and reconsider) in lower courts.  In other words, a nice bottle of wine (or maybe a Starbucks gift card) would be a great holiday gift for anyone you know who works in or around the federal criminal justice system.

USSC unanimously votes to make new crack guidelines retroactive...

Though I am relying here on second-hand reports, I have now on pretty good authority from two sources that the US Sentencing Commission today voted to make its new crack guidelines retroactive.  Here's what I received from one of these reputable sources:

The vote is yes — they have made the amendment retroactive effective March 3, 2008.

They also promulgated an application note intended to restrict resentencings exclusively to the issue of the two-level reduction. It makes public safety a central concern for courts to evaluate when reconsider these sentences.

Assuming this report is accurate, this strikes me as another example of the Commission's commitment to justice being effectively implemented with political savvy.  It also makes me wonder whether Senator Hillary Clinton or anyone else who has come out against retroactivity might try to get Congress to overturn this decision before it will become effective in three months.

UPDATE:  FAMM has this press release discussing the decision on its website.

In praise of the USSC's recent crack work (so far)

As I await word on the US Sentencing Commission's hearing on crack retroactivity this afternoon (background here and here and from TalkLeft here), I want to take just a moment to praise the USSC's work on this important issue.  Though I have often been (justifiably?) hard on the Commission's post-Booker efforts, I have been quite impressed with both the commitment to justice and the political savvy shown by the Commission throughout 2007. 

I have argued in a number of recent articles (such as "Tweaking Booker..." and "Beyond Blakely...") that the Commission can and should be a leading voice for sound sentencing reforms in the wake of the Supreme Court's Blakely/Booker jurisprudential earthquake.  Though I hope and wish the Commission will get serious about deep systemic reform of a number of federal sentencing problems, its attentiveness to the crack/powder disparity shows that it is not afraid to take on a politically-charged issue when a true commitment to justice demands action.  Especially impressive has be the transparency with which the USSC has proceeded in the crack arena, informing all interested persons about its plans and giving everyone a reasonable opportunity to weigh in.

Of course, I may have to take back all this praise if the USSC does not have sufficient courage to make its new guidelines retroactive.  However, I am cautiously optimistic that the USSC will have the courage of its convictions and will enable previously-sentenced defendants to be eligible to get the benefit of the improved (though still imperfect) new crack guidelines.

A preview of USSC crack retroactivity vote

As spotlighted here, the US Sentencing Commission has this public meeting scheduled for 3:30pm today, at which it seems likely to resolve whether its new crack guidelines can be applied retroactively.  A few new stories covering this consequential issue include this AP story, " Panel Weighs Easing Old Crack Sentences," and this ABC News piece, "Panel to Consider Crack Sentence Reductions."

Here is an abridged account of some of my prior blog coverage:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Inside the Beltway views on crack amendment retroactivity
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• A retroactive litmus test on leading Democratic candidates
• Seeking to clear up Clintonian confusion on crack retroactivity
• More questions about Clinton's opposition to crack guideline retroactivity
• Latest FSR issue covers crack sentencing

No matter what the USSC decides this afternoon, this story is going to march on.  There will surely be a lot of lower court litigation (and likely some disparate legal rulings) regardless of whether the USSC makes its new crack guidelines retroactive.  But, critically, what the USSC decides will set the terms of debate and the broader tone of this inevitable litigation.

USSC public hearing next week to discuss crack retroactivity

Mark your calender, sentencing fans:  as noted on the US Sentencing Commission's website, "a public meeting of the Commission is scheduled for Tuesday, December 11, 2007, at 3:30 p.m., in the Mecham Conference Center, Thurgood Marshall Federal Judiciary Building, Washington, D.C."  This official notice provides a bit more background and this enticing agenda:

• Possible Votes on Retroactivity
• Adjourn

I think this means we could have a decision on crack retroactivity as early as next week.  But the word "possible" in the agenda, of course, might mean that the issue may not be settled that soon.

Some recent related posts:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Inside the Beltway views on crack amendment retroactivity
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• Latest FSR issue covers crack sentencing

More questions about Clinton's opposition to crack guideline retroactivity

This post at the Drug War Chronicle blog asks "Is Rudy Giuliani Shaping Hillary Clinton's Stance on Drug Laws?".  The post notes that Clinton's team has defended her opposition to the new crack guidelines being retroactive by citing Giuliani's apparently similar position.  Here is the potent end to the potent post:

We must now ask ourselves to what extent Hillary's other drug policy positions have been shaped by Rudiphobia.  When she raised her hand in opposition to marijuana decrim, was that for real? Was there a little Giuliani in a devil suit whispering in her ear, threatening to tell the swing voters what a hippie she is?   Will she backtrack on medical marijuana and needle exchange if Giuliani says he disapproves?

We can spend eternity smashing minority communities with our drug war hammers at the behest of authoritarian demagogues like Rudy Giuliani. And if no one speaks up, that's exactly what will happen.  So if Giuliani wants to publicly embrace racist drug war politics, let him.  The antidote to the "soft on drugs" label is to stop looking over your shoulder and start speaking with conviction.

Some recent related posts:

• A retroactive litmus test on leading Democratic candidates
• Seeking to clear up Clintonian confusion on crack retroactivity

UPDATE:  I now see that Celeste Fremon has picked up on this issue in this post at The Huffington Post.  I will remain intriguing to see if this issue continue to have traction since, as detailed in this item from Politico, suggesting that "one of Clinton's real vulnerabilities [is the] perception that she's driven by polls, not conviction."

Seeking to clear up Clintonian confusion on crack retroactivity

In the wake of crack retroactivity discussion by the Democratic presidential candidates, the ACLU has issued this new press release to "correct misconceptions about retroactivity."  Here are excerpts:

• All offenders would first have to go before a court to have their case reviewed and argue that they are fit to be freed.  People would not automatically be released from prison. Offenders who qualify for release under the new guidelines would have to appear before a judge, who would make the decision as to whether the person should be released from prison.

The following can be attributed to ACLU Legislative Counsel Jesselyn McCurdy:  "The USSC changed the crack cocaine sentencing guidelines last month because the commission realized they were unfair. It makes no sense to call a law unjust and in the same breath say it should still apply.  Retroactivity doesn’t mean prisoners will be released en masse; it means the mistakes in sentencing that have gone unchecked for decades will be corrected. Prisoners arrested for federal crack cocaine offenses who have served their time should serve only their time."

Though the press release does not fully explain who may be responsible for "misconceptions about retroactivity," it is obvious that Hillary Clinton is the chief culprit.  As previously discussed here, Clinton this past weekend echoed comments by President Bush's Justice Department (noted here) and Republican members of the House Judiciary Committee (noted here) when indicating she is against retroactive application of the USSC's new crack guidelines.

I am pleased to see the ACLU trying to make sure facts and not fear drive this important sentencing reform discussion.  I hope other sentencing reform groups like FAMM and The Sentencing Project will follow suit.

A retroactive litmus test on leading Democratic candidates

anIf this blog post from The Atlantic Online is accurate, it confirms my deep concerns about how Hillary Clinton would approach crime and punishment issues as president.  The post is titled "Clinton, Obama, Edwards Differ On Retroactivity," and it reports that "Clinton opposes [retroactivity of the USSC's new crack amendments], and Edwards and Obama support it."

So, assuming this is accurate, let's review the line-up: the prominent opponents to retroactivity for the new USSC guidelines are President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and now Senator Hillary Clinton.

As I have detailed in prior posts (some of which are linked below), I have long been troubled by the Clinton "brand" when it comes to criminal sentencing issues.  But, of course, most of the troublesome record on these issues involved decisions by Hillary's husband.  Now, assuming this blog report is accurate, we have a very strong basis to believe that Hillary herself favors tough-on-crime rhetoric over sound sentencing policy.  Now who should be accused of taking a page out of the Republican play book?

Some recent posts on crack guideline retroactivity issues:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Inside the Beltway views on crack amendment retroactivity
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• Latest FSR issue covers crack sentencing

Some recent posts on sentencing politics in the 2008 campaign:

• Clinton and Obama, crime and punishment
• Will sentencing issues surface in the Clinton-Obama battle for black votes?
• Politics and the war on drugs
• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• Obama talking about serious sentencing reform

UPDATE:  I now see that this item at Politico has more on this story.  Here are some telling details:

Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges.  "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well." 

In an interview after the debate, Clinton's pollster, Mark Penn, pointed out that the Republican front-runner has already signaled that he will attack Democrats on releasing people convicted of drug crimes.

Her five rivals present on stage — Illinois Sen. Barack Obama, Connecticut Sen. Chris Dodd, former North Carolina Sen. John Edwards, New Mexico Gov. Bill Richardson, and Ohio Rep. Dennis Kucinich — all said they favor making the shorter sentences retroactive.

"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."

So, besides suggesting that Hillary Clinton gets her crime and punishment ideas from the Giuliani campaign, this issue ought to help Democratic primary voters who care about principled sentencing reform know that not all the candidates are the same.  (I am now wondering if keep prison populations growing is part of Hillary's universal health-care plan.)

MORE:  I am pleased to see TalkLeft picking up this story, calling Clinton's position "a huge disappointment."  I also see MyDD has this post saying that "Hillary's position is really astonishing."  I hope other prominent political bloggers will keep on this important issue which provides, at least for me, a great litmus test on true principle versus (mis-perceived) political pragmatism.

Inside the Beltway views on crack amendment retroactivity

In addition to the Justice Department, some members of Congress have expressed opposition to the US Sentencing Commission making its new crack guidelines retroactive.  In an letter to the USSC Chair earlier this month (and available for download below), 13 members of the House urged the USSC "not to apply this amendment retroactively."  Avid sentencing fans will not be surprised by the names appearing on this letter.

Download crack_powder_retroactivity_letter.pdf

Meanwhile, today's Washington Post has this new editorial urging the USSC to make the new guideline retroactive and urging further congressional action on crack sentences.  Here is how it starts:

This month, a measure of rationality was injected into federal sentencing guidelines when more lenient penalties for crack cocaine became the law of the land.  The new guidelines will affect defendants convicted in the future, but they also should be made retroactive.  That would bring some measure of equity to thousands of offenders -- roughly 85 percent of them African American men -- already serving unjustifiably long prison terms.

Some recent related posts:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• Latest FSR issue covers crack sentencing

Transcript from USSC hearing on crack retroactivity

Many folks this holiday season are likely thankful that the US Sentencing Commission seems poised to make its new crack guidelines retroactive.  And, thanks to the magic of websites, these folks can now read a transcript from the USSC's November 13, 2007, public hearing on this issue at this link.

Some recent related posts:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Thoughtful review of crack amendment retroactivity debate
• Latest FSR issue covers crack sentencing

Thoughtful review of crack amendment retroactivity debate

At FindLaw, Mark Allenbaugh and Paul Hofer have this effective new piece discussing the debate over the US Sentencing Commission's new crack amendments.  The piece is entitled "The U. S. Sentencing Commission Considers Shortening Terms for Imprisoned Crack Offenders: Should the Reduction of the Disparity Between Crack and Powder Cocaine Sentencing Be Retroactive?". Here are excerpts:

On November 13, the Commission held a day-long hearing in Washington, D.C., to consider the retroactivity question, after having received over 30,000 letters in support of retroactivity....

The hearing demonstrated the willingness of the Commission, the federal judiciary, the defense bar, and many others to work together to correct a longstanding injustice in federal sentencing. Despite these efforts, however, the Commission made clear when it promulgated the crack amendment that it represents "only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress." In particular, the mandatory minimum penalty statutes need to be repealed or amended to reflect the actual seriousness of crack offenses.

The behavior of offenders who benefit from the Commission's actions through early release will also affect future efforts to reform our nation's harsh drug laws.  All eyes will be on them to see how responsibly they handle the earlier freedom the Commission might make possible. A return to addiction or crime will make future reform more difficult, and will disappoint the many supporters who worked to make crack penalties more just.

Near the end of the hearing, Julie Stewart, testifying for Families Against Mandatory Minimums, asked persons in the audience with family members in prison to stand and make their presence known.  The room fell silent as mothers, fathers, siblings, and children who had traveled to Washington from around the country rose and held aloft pictures of their loved ones who are still behind bars.

Some recent related posts:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing
• Media coverage of crack retroactivity hearing
• Effective coverage of crack retroactivity debate
• USSC analysis on potential crack amendment retroactivity impact
• Latest FSR issue covers crack sentencing

Media coverage of crack retroactivity hearing

How Appealing collects here some of the major media coverage of yesterday's debate over retroactive application of the new crack guidelines before the US Sentencing Commission.   This Washington Post piece provides this information about a likely timeline for the USSC's decision:

The commission, comprising seven voting members appointed by President Bush and former president Bill Clinton, is scheduled to meet today, but a vote on retroaction is unlikely.  Individuals familiar with the panel's deliberations who spoke only after receiving a promise not to be identified said the commission is likely to vote on retroaction in January. A spokesman for the group declined to discuss its plans.

Meanwhile, this New York Sun piece suggests that Rudy Guiliani is against retroactivity, although it appears the paper is itself trying to drum up a controversy"

In response to a question from The New York Sun yesterday, Mr. Giuliani said he was not familiar with the details of the proposal, but added that his experience as a prosecutor made him wary of a surge of thousands of ex-offenders onto the streets.

Some recent related posts:

• USSC hearing testimony on crack amendment retroactivity
• A report on the USSC crack retroactivity hearing

A report on the USSC crack retroactivity hearing

I am pleased to be able to provide, thanks to a person self-described as a "DC Wonk," this informative report sent to me by e-mail concerning today's US Sentencing Commission hearing about the possible retroactive application of the new crack guidelines:

I have no experience reading tea leaves, but it sure seemed to me that the USSC is grappling with *how* to implement retroactivity, not *if* they should.  That they will vote to implement seems a foregone conclusion.

The major issue seemed to be: would Booker apply to an inmate who was initially sentenced before Booker, and is now applying to get his sentenced reduced under retroactive application of the two-level reduction.  Those who are against retroactivity argued that "of course it applies," as they tried to demonstrate the huge caseload that will clog up the entire federal court system. (Repeated cites to the figure of 19,500 to whom retroactivity might apply.) One of the commissioners noted that Booker would apply according to Hicks, but that Hicks is only applicable in the 9th Circuit where only 500 of these 19,500 are; but that the 4th Cir views otherwise, and 5,000 (of the 19,500) reside there.

Another interesting observation: for the most part everyone was polite and cordial, with one exception. The spokesperson for DOJ, the USA from West NC was pretty extreme in her language (most of her presentation was anecdote) and a bit misleading with some of her stats.  She was the only witness (as of 1:00 pm) to face any hostile questioning. If anyone was wavering (itself a dubious proposition), she did her cause damage.

Most interesting was Prof Chanenson (Villanova) who argued that 3582(c)(2) was *not* a resentencing, but more like an "equitable sentencing procedure", and therefore Booker had no relevance, and that the USSC and/or Congress would have the right to make this retroactivity fairly restrictive (so as to minimize the burden on the courts, on the Marshals who have to transport prisoners, etc.)  The Prof had a number of other suggestions to minimize the impact of resentencing on the federal system, and the USSC seemed most interested....

All in all, a few commissioners seemed to almost openly support retroactivity (particularly Castillo, Howell, and Sessions); I suspect Hinojosa is sympathetic (although he was "above it all" as chair); John Steer said that he agreed with the Prof that Booker wouldn't apply; Horowitz seemed sympathetic; Friedrich asked a question that was unflattering to DOJ.

In summary here: there were some statements that seemed to indicate favor to retroactivity, and some neutral. I didn't see any from any Commissioner to indicate s/he was against. I find it hard to see how anyone can scrounge four votes against retroactivity....

I am very pleased to hear that the Commissioners were in sync with Professor Steve Chanenson's insights.  I had the good fortune to talk with Steve as he was putting together his testimony, and I agreed with 99.9% of what he was planning to say to the USSC.  I have provided for downloading below Steve's written testimony, which is both effective and fascinating on many levels.

Download chanenson_ussc_testimony_november_13_2007.pdf

USSC hearing testimony on crack amendment retroactivity

Over at its website, the US Sentencing Commission now has lots of the witnesses' written testimony linked to this planned agenda for the all-day public hearing tomorrow at Georgetown University Law Center concerning whether the USSC's new crack guidelines should be applied retroactively to previously sentenced defendants.  I do not see anything too surprising in the testimony now linked there, though I still expect the hearing will be quite eventful (especially with FAMM encouraging its members to attend).   

I hope attendees will take good notes and perhaps send me reports for posting.  I am especially interested to hear if the Commissioners indicate when they expect to make their decision on retroactivity.   As this article in the Los Angeles Times highlighted this morning, this crack retroactivity decision may be the single most consequential decision to be made by the USSC since the initial guidelines were first promulgated 20 years ago.   (This archive of my crack coverage provides plenty to review in anticiaption for Tuesday's hearing.)

UPDATE:  The Washington Post has this front-page article in its Tuesday edition entitled "Sentences For Crack Offenses Studied; Thousands Could Be Released Soon."  The piece highlights the racial dimensions of the retroactivity issue: "Nearly 86 percent of inmates who would be affected by the change are black; slightly fewer than 6 percent are white.  Ninety-four percent are men."

Also, the Post has this strong op-ed by former Judge Paul Cassell entitled "Repairing a Crack in the System."  He responds to some of the Justice Department's advocacy against retroactivity:

[T]he Justice Department "strongly opposes" such a move. In a letter to the commission, the department expressed concern about the "sweeping impact" retroactive application would have.  This curious, misery-loves-company argument seemingly suggests that the commission should correct small injustices, but not significant ones.

The department also argues that re-sentencing offenders would "impose enormous and unjustified costs" on the federal court system.  But even the department's possibly exaggerated estimate, in the millions of dollars, would be dwarfed by the more than $1 billion that could be saved by releasing prisoners early from expensive prison cells.

Effective coverage of crack retroactivity debate

The Los Angeles Times has this new extended article highlighting the import and significance of the debate over whether to make the new crack sentencing guidelines retroactive.  Here are snippets of the piece:

Under pressure from federal judges, inmate advocacy groups and civil rights organizations, federal authorities are considering a sweeping cut in prison sentences that could bring early release for thousands of federal inmates.

The proposal being weighed by the U.S. Sentencing Commission would shave an average of at least two years off the sentences of 19,500 federal prisoners, about 1 in 10 in the 200,000-inmate system. More than 2,500 of them, mainly those who have already served lengthy sentences, would be eligible for release within a year if the rule is adopted....

The congressionally chartered commission, which sets sentencing guidelines for federal judges, has already adopted reduced penalties for new crack cases hitting the courts effective Nov. 1. That decision will affect about 4,000 a cases a year.  The debate now is about its plans to make those changes retroactive to inmates.  The seven-member commission is considering the proposal at a hearing Tuesday; a vote is expected next year....

The widely differing treatment of crack offenders is "fundamentally unjust," said Reggie B. Walton, a federal judge in Washington.... "It is one of the very important civil rights issues of our day," said Hilary O. Shelton, director of the Washington office for the National Assn. for the Advancement of Colored People, which has long pushed for changing cocaine laws.

Some recent related posts:

• USSC sets agenda for crack amendment retroactivity hearing
• Judicial Conference urges retroactivity of new crack guidelines
• DOJ and FPD advocacy to the USSC about crack amendment retroactivity
• Debate over retroactive application of new crack guidelines
• More of the crack facts and retroactivity arguments
• USSC analysis on potential crack amendment retroactivity impact
• Latest FSR issue covers crack sentencing

More of the crack facts and retroactivity arguments

The latest issue of Time has this article on the new crack guidelines, which includes this effective analysis of what's happening:

Drug dealers are bad guys, but even they should be treated fairly.  That's why advocates of sentencing reform are cheering a recent federal move to narrow the jaw-dropping disparity in sentences for trafficking in two versions of the same drug, cocaine. But it's way too early for them to be declaring victory... [W]hile the new guidelines have reduced the penalties above the mandatory minimums, those minimums are still firmly in place....

What's more, even the changes in the guidelines will have only a limited effect unless the sentencing commission makes them retroactive — an issue it is expected to discuss at a Nov. 13 meeting.  As of now, the new guidelines will affect only new offenders.  If the commission decides to go retro, the move could shorten the prison terms for some 19,500 inmates by an average of 27 months.

On the "retro" front, the Sentencing Commission has now made available here some of the comments it has received from "the judiciary, the executive branch, interested organizations, members of the defense bar, and individual citizens."   I especially liked Judge Richard Kopf's to-the-point pitch for retroactivity:

I urge the Commission to make the "crack" amendments to the Guidelines retroactive.  Even though that will mean more work for judges, every conception of justice of which I am aware justifies such an action.

On its main webpage, the USSC also notes that it "received more than 33,000 letters from individuals expressing their views on retroactivity."  Next week's USSC hearing on these issues ought to be a doozy.

Some recent related posts:

• USSC sets agenda for crack amendment retroactivity hearing
• Judicial Conference urges retroactivity of new crack guidelines
• DOJ and FPD advocacy to the USSC about crack amendment retroactivity
• Is there any principled basis for DOJ opposition to the crack amendment being retroactive?
• Debate over retroactive application of new crack guidelines
• USSC analysis on potential crack amendment retroactivity impact
• Latest FSR issue covers crack sentencing