Sunday, December 30, 2007

Continued crack coverage ... but to what effect?

Valuably, the US Sentencing Commission recent work lowering the crack guidelines sentencing ranges and the Supreme Court's Kimbrough decision continue to generate media stories about the inequities in federal drug sentencing.  This AP article, for example, spotlights the continued 100-to-1 ratio reflected in crack and powder cocaine mandatory minimum sentencing terms even though, according to Nora Volkow, director of the National Institute on Drug Abuse, there is "no scientific justification to support the current laws."   

Similarly, this morning's Los Angeles Times has this lengthy article headlined "Chipping at tough crack sentencing: Laws were ineffective and the drug's ravages overblown, experts say."  The piece does a very effective job documenting the history crack-powder sentencing disparities, but then note the political problems that have continued to impede significant reform:

"I thought, 10 years ago, as the [crack] issue lost its prominence, one would see more rational decision-making," said Peter Reuter, professor of public policy at the University of Maryland and co-director of the drug policy research center at RAND. Instead, he said, "the issue lost its saliency," and "politicians lost interest."...

Despite relaxation of the guidelines, people caught with crack cocaine still will face long prison terms. Congress so far has refused to retreat from the "mandatory minimum" laws that require prison terms of at least five years for possession of crack cocaine.

But some lawmakers have been pressing for change. Calling it "a terrible flaw in the criminal justice system," Sen. Joseph R. Biden Jr. (D-Del.), a Democratic presidential candidate, proposes eliminating the 100-to-1 disparity between powder and crack cocaine. Reps. Sheila Jackson-Lee (D-Texas) and Charles B. Rangel (D-N.Y.) have introduced similar bills in the House. Sens. Jeff Sessions (R-Ala.) and Orrin G. Hatch (R-Utah) -- have proposed raising the amount of crack cocaine that would trigger a mandatory prison term.

But none of these proposals has won approval from the judiciary committees of the House or Senate. Mark Kleiman, a UCLA professor of public policy and a drug policy expert, said: "Nobody [in Congress] wants to go home and explain why they let the crack dealers out of prison."

December 30, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Tuesday, December 25, 2007

A different story about a baseball player and drugs

Perhaps even sadder than the Mitchell Report is the story of Willie Mays Aikens's experience with a drug more troublesome than steroids. The Washington Post has this lengthy article telling Aikens's story and the possibility it will be altered by the new crack guidelines.  Here is it begins:

Willie Mays Aikens is a part of baseball lore.  As a member of the 1980 Kansas City Royals, he became the only man to hit more than one home run in two games of the same World Series. But 27 years after his feat, Aikens languishes in a federal prison in Jessup, Ga., brought low by cocaine addiction and a federal law that mandated long prison sentences for crack cocaine offenses.

From a face on a baseball card, Aikens is now a poster child for what some jurists and civil rights activists say is the absurdity of the difference between the way federal law treats people convicted of crack cocaine offenses and those found guilty of crimes involving powder cocaine.  Aikens received more than 15 years for possession of 64 grams of crack -- about the same weight as a large Snickers bar.  To receive an equivalent sentence, he would have had to possess nearly 6.5 kilos -- more than 14 pounds -- of powder cocaine.

"You can supply a whole neighborhood with 6.5 kilos," Aikens said by telephone from prison, where he is in the 13th year of his sentence. Activists, lawyers and many federal judges say cases such as Aikens's demonstrate the inequity of cocaine sentencing laws and validate the U.S. Sentencing Commission's recent decision to ease prison time guidelines for crack offenders. The new guidelines will apply retroactively to about 19,500 inmates.

Within hours of the decision, Aikens said he was on the telephone with his lawyers, asking them to request a sentence reduction. They calculated that the new guidelines could shave nearly 2 1/2 years off his sentence. "The disparity, as far as I'm concerned, is totally wrong," said Aikens, a nonviolent offender. "This took me away from my family. My girls were 4 and 5 years old when I was sentenced. Now they're 18 and 19."

The Bush administration fought the new guidelines, saying inmate petitions would overburden the federal court system, and hardened criminals, some violent, might go free. Thousands of cases will have to be litigated again in the courts where they were heard, and "those cases are going to detract from the many cases that are already pending in overworked, understaffed U.S. attorney's offices," said Steve Cook, vice president of the National Association of Assistant U.S. Attorneys.  Commissioners said it was highly unlikely that judges would free inmates with a violent past.

Some recent related posts:

December 25, 2007 in New USSC crack guidelines and report | Permalink | Comments (5) | TrackBack

Monday, December 24, 2007

Local perspective on implementing crack retroactivity

My home-town Columbus Dispatch has this article on Ohio federal courts gearing up for implementing the now retroactive crack guidelines. Here are some excerpts:

At least 224 federal prisoners who were convicted here of crack-cocaine crimes could be released early, according to an estimate by the U.S. Sentencing Commission.  A Dec. 11 decision that allows sentences to be reduced won't take effect until March 3, but prisoners already are lining up to apply, officials said.

Phone lines have been ringing steadily with inquiries, said Steve Nolder, a federal public defender. And U.S. District Judge Gregory L. Frost said one inmate's request for early release has been on his desk since Dec. 17.

Last spring, the commission eased the sentencing guidelines for crack-cocaine offenses. On Dec. 11, it voted to make the reduction retroactive so that those already convicted could be eligible for early release.... Local judges said the change was long overdue. "It should have never been a 100-to-1" disparity, Frost said.  Decisions on how the changes will be instituted are forthcoming, but it appears an inmate must petition the court for early release, U.S. District Judge Edmund A. Sargus said....

The federal court's Southern District of Ohio, which includes Columbus, Dayton and Cincinnati, has slightly more than the national average of eligible cases. The Northern District, which includes Cleveland, Akron, Mansfield and Toledo, has 396 eligible cases -- the 12th-highest among the federal court's 94 districts.

I was intrigued by the article's assertion, apparently paraphrasing Judge Sargus, that "decisions on how the changes will be instituted are forthcoming."   Forthcoming from whom?  From the US Sentencing Commission?  From district courts through rules?  Are there folks at the Justice Department and in defender offices working on protocols for processing these motions for sentencing reductions in these crack cases?  In short, this inquiring blogger wants to know who has started working on a game plan for implementing the retroactive crack guidelines.

Some recent related posts:

December 24, 2007 in New USSC crack guidelines and report | Permalink | Comments (6) | TrackBack

Thursday, December 20, 2007

Bill introduced to overturn USSC's crack retroactivity decision

As detailed in this press release from House member Lamar Smith, there is now officially a bill in Congress to overturn the US Sentencing Commission's decision to make its new crack guidelines retroactive.  Here are excerpts from the press release:

Ranking Member Lamar Smith (R-TX) [has] introduced legislation to protect American communities from convicted crack offenders.  This bill ensures that an estimated 20,000 criminals will not be released before serving their full prison sentence.

“The American people have the right to know that their homes and communities are safe from dangerous criminals and convicted crack cocaine traffickers,” stated Ranking Member Smith.  “The decision by the U.S. Sentencing Commission to apply lowered penalties for crack cocaine offenders retroactively undermines the efforts of law enforcement officials across the nation and raises serious public safety concerns.”...

“To protect the American people and combat the dangerous drug trade, we must ensure that convicted criminals remain behind bars,” concluded Smith. “This bill keeps communities safe from crack cocaine offenders by prohibiting the early release of 20,000 criminals.”

Additional members of the House Judiciary Committee joining Ranking Member Smith in sponsoring this bill include Crime Subcommittee Ranking Member Louie Gohmert (R-TX), Representatives Steve Chabot (R-OH), Howard Coble (R-NC), J. Randy Forbes (R-VA), Trent Franks (R-AZ), Elton Gallegly (R-CA), Jim Jordan (R-OH) and F. James Sensenbrenner, Jr. (R-WI).

As the press release highlights, the only supporters of this bill as of this writing are Republicans.  Indeed, with Democrats now controlling both houses of Congress, I doubt that this bill will get passed.  However, one notable Democratic Senator, Hillary Clinton, has expressed her opposition to making the new crack guidelines retroactive.  So, this bill already has the tacit support of at least one prominent Democratic Senator.  It will be interesting to see if she or someone else proposes a similar bill in the Senate and also whether this bill ever gets a hearing or serious traction in the legislative process.  Stay tuned.

Here is an abridged account of some of my prior blog coverage on this issue and its politics:

December 20, 2007 in New USSC crack guidelines and report | Permalink | Comments (9) | TrackBack

Wednesday, December 19, 2007

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

December 19, 2007 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, December 17, 2007

Reflections on crack sentencing reform realities

Articles today in the Chicago Tribune and the New York Times provide fitting accounts of why persons interested is significant sentencing reforms should not get too jazzed about last week's amazing federal sentencing events. James Oliphant's Tribune article is headlined "New drug rules won't crack many jail doors," and it starts this way:

When the U.S. Sentencing Commission last week reduced sentences for imprisoned crack cocaine offenders -- reversing years of policy that treated crack far differently from powder cocaine -- the Justice Department and police groups bitterly criticized the action, warning of a flood of criminals rushing out onto America's streets....

But many experts say the reality is not so dramatic.  Fewer than 3,000 prisoners nationwide will be immediately eligible for the relief.  All have already served considerable time.  Each eligible prisoner will have to petition the court for freedom -- and the Justice Department can oppose those petitions.  Few offenders with violent histories are likely to be released.

Adam Liptak's Times column is headlined "Whittling Away, but Leaving a Gap," and it starts this way:

There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.

The net effect: tinkering.  The United States justice system remains, by international standards at least, exceptionally punitive.  And nothing that happened last week will change that.

December 17, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Thursday, December 13, 2007

Latest crack retroactivity FAQ from FAMM

Now available and subject to regular revision at FAMM's website is this document entitled "FAQs about crack amendment retroactivity."  This 3-page document covers "frequently asked questions about the federal crack guideline amendment and its retroactive application."   Here's one of many important Q & A sections:

Q: Will the crack amendment automatically apply to all crack offenders sentenced before November 1, 2007?

A: No. Only the sentencing court can decide whether the amendment applies to the prisoner and whether the prisoner gets a sentence reduction. To obtain a sentence reduction, the prisoner must make a motion under 18 U.S.C. § 3582(c)(2) to the court that sentenced him/her.

December 13, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, December 12, 2007

USSC's "Reader-Friendly" version of retroactivity amendment

Now up at the US Sentencing Commission website is this notice:

"Reader-Friendly" Version of Amendments on Retroactivity Effective March 3, 2008 On December 11, 2007, the Commission voted to give retroactive effect to the recent crack cocaine amendment and adopted other modifications to the policy statement covering retroactivity. This reader-friendly text combines the text of the two amendments to policy statement §1B1.10 [Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)] and shows §1B1.10 as it will appear in a forthcoming supplement to the Guidelines Manual.

Official text of the amendments will be posted on the Commission’s website at www.ussc.gov and can be found in a forthcoming edition of the Federal Register. The amendments incorporated into this reader-friendly version of §1B1.10 do not take effect until March 3, 2008. Until that date, the court should apply §1B1.10 as it exists in the Guidelines Manual effective November 1, 2007.

December 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

"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.

December 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (13) | TrackBack

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."

December 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Tuesday, December 11, 2007

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.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (17) | TrackBack

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.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (9) | TrackBack

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.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

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.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (10) | TrackBack

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.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (12) | TrackBack

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:

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.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, December 05, 2007

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:

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:

December 5, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Tuesday, December 04, 2007

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:

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."

December 4, 2007 in Campaign 2008 and sentencing issues, New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

Monday, December 03, 2007

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.

December 3, 2007 in Campaign 2008 and sentencing issues, New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

Sunday, December 02, 2007

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:

Some recent posts on sentencing politics in the 2008 campaign:

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.

December 2, 2007 in Campaign 2008 and sentencing issues, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (16) | TrackBack