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April 28, 2007

Why the USSC's new crack work is soooooo significant

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

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

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

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

April 28, 2007 at 11:17 AM | Permalink


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» On Crack Sentencing: 100 Times Zero Is Still Zero from Drug Law Blog
Prof. Berman at the Sentencing Law and Policy Blog continues to argue that the recent tweak to the federal sentencing guidelines around crack is, in his words, soooo significant. I have enormous respect for Prof. Berman and don't claim to [Read More]

Tracked on May 15, 2007 1:08:14 PM


Professor, I am a newly-minted attorney from New York (admitted a month ago, actually, so I haven't started practicing yet).

I am wondering what the real impact of the US Sentencing Commission's new guidelines would be, considering the decision in Neal v. United States (1996) - http://www.drugpolicycases.com/opinions/opinion69.html . I am not sure what kind of impact that decision had and whether the Sentencing Commission's new revised guidelines regarding crack/cocaine will get the same dismissive treatment as its guidelines regarding LSD in Neal. Maybe you can elucidate this issue - i think my understanding of it remains somewhat muddy.



Posted by: Yakov Spektor | May 18, 2007 6:25:15 PM

Good evening,
I am inclined to say i am none of the above ,just a mother of two beautiful children and in one case my twelve year old her father has been in the Federal penile system for eleven years and my youngest her father was charged with conspiracy to traffic and they offered him aplea of 10-life but just to give you reconition for help the poor,forgotten,and those who don't have the access to gaining knowledge about the law and the guidelines as well as new laws. I really thank you and hop you will respond to my comment. Again THANKS!!!!!!

Posted by: Neka Wilson | Feb 10, 2008 8:45:32 PM

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