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January 6, 2006

More Pho follow-up

I have explained here my concerns with the First Circuit conclusion in Pho (basics here) that a district court's decision to apply a 20:1 crack/powder ratio rather than the 100:1 ratio "was incorrect as a matter of law."  But there are more Pho issues to explore, especially with respect to what might happen in the wake of this important decision.   (The basics of the Pho decision and some questions about its aftermath are well covered in this Providence Journal article on the case.)

For instance, I am wondering when other circuits will address this issue, and whether they will get in line behind Pho or instead give us a circuit split.  I am also wondering how district courts in the First Circuit and elsewhere might respond to Pho and its ruling that "case-specific considerations" are required to justify a decision to deviate from the crack guidelines.  Also, might any data or policy statements on this issue emerge from the Sentencing Commission (which has stated, in its most recent list of priorities, that it is working on the crack/powder matters again)?

In addition to looking ahead, there is more to say about the Pho decision itself.  Spurred by my critique of Pho, Yale Law student Eric Citron — a self-described "sentencing junky" who provided this report on the Pho oral argument last month — wrote up a thoughtful four-paragraph defense of Pho.  Because Eric expressed interest in a dialogue on these topics, I could not resist the urge to respond to each of his paragraphs.  For Pho fanatics, this uber-commentary on the case can be downloaded here: Download a_dialogue_about_pho.doc

January 6, 2006 at 03:04 AM | Permalink


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