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May 12, 2007

Conclusive proof old crack guidelines unreasonable

Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments.  (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)

The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable.  Consider these paragraphs (and especially the highlighted sections):

Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.

The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems.  The Commission has concluded that the manner in which the Drug Quantity Table in §2D1.1 was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio....

Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses.  The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems.

This fully up-to-date and expert analysis from the USSC provides, in my view, conclusive evidence that a sentence imposed within the old crack guidelines is NOT likely to serve the purposes of punishment Congress set forth in 3553(a)(2).  Consequently, each every defendant sentenced within the old crack guidelines has a very strong basis for arguing on appeal that his sentence is unreasonable (and certainly that a presumption of reasonableness should not apply to any within-the-old-crack-guideline sentence).

Related posts on the USSC new crack work:

May 12, 2007 at 01:27 PM | Permalink


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So, Professor, is it your opinion/position that whatever the Commission says (or doesn't say) about retroactivity of the crack amendment (assuming it's not voted down by Congress) it will apply retroactively anyway? And how does that square with the fact that not a single Circuit Court has seen fit to apply Booker retroactively?

Posted by: anonymous | May 13, 2007 10:38:37 PM

Anon, I think you might be confusing some things. Courts have rejected the idea that Booker applies retroactively in spite of AEDPA, concluding that it just wasn’t enough of a watershed ruling to warrant collateral relief. On the other hand, people convicted pre-Booker, but whose sentences were on appeal while it was pending were able to take advantage of Booker – i.e. the so-called Booker “pipeline” cases. Professor Berman argument is that if the guidelines were to change, defendants whose cases are on appeal, or who have not been sentenced yet could argue that the pre-amendment guidelines were unreasonable because they were later changed, reflecting an acknowledge that the large disparity was unreasonable.

Posted by: S.cotus | May 14, 2007 7:02:33 AM

Do these crack amendments create any fodder for a motion pursuant to 18 USC § 3582(c)(2)?

Posted by: curious | May 14, 2007 4:41:24 PM

Great post even though I was a little confused at first and thought you are talking about jewels. Anyhow great site and good info to know! More conversation materials for me!

Posted by: air jordans retro 4 | Nov 29, 2010 4:14:14 AM

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