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July 26, 2007

A judicial pitch for making crack reductions retroactive

Sentencing Hall of Famer Judge Lynn Adelman has kindly allowed me to post the letter he recently sent to the US Sentencing Commission urging the USSC to make its new crack guidelines retroactive.  Here are excertps:

The Sentencing Commission recently took the estimable step of proposing guideline amendments to reduce the sentencing ranges for cases involving crack cocaine.  The Commission also produced another detailed report on cocaine and federal sentencing policy, reiterating its consistent position that the 100:1 disparity between crack and powder cocaine is unjustified and undermines the objectives of the Sentencing Reform Act.  The amendments will, as you know, go into effect on November 1, 2007, absent congressional disapproval.

The Commission has not yet decided whether to make those amendments retroactive pursuant to U.S.S.G. § 1B1.10.  As you know, under 18 U.S.C. § 3582(c), district courts are authorized to reduce previously imposed terms of imprisonment that were based on a sentencing range subsequently lowered by the Commission, but only if the Commission specifically designates the amendment for retroactive application. I urge the Commission to list the crack cocaine amendment as one of those retroactively applicable under § 1B1.10(c)....

It may be argued that allowing retroactive application of the crack amendment will open the district courts to a flood of § 3582(c) motions.  Such concerns are overstated.  Motions under § 3582(c) may be resolved without a hearing, and without the presence of the defendant.  See Fed. R. Crim. P. 43(b)(4).  Further, since the court will have already determined drug weight, no additional fact-finding will be required. Finally, even if the Commission does not make the crack amendment retroactive, it seems likely that many prisoners sentenced under the old guidelines will nevertheless seek relief via motions under 28 U.S.C. §§ 2255 or 2241, or papers bearing other, more creative labeling.  Even if retroactive application does create more work for the courts, it seems well worth it to achieve fairer, more proportionate sentences, which actually promote respect for the law.

Download hinojosa_letter.rtf

July 26, 2007 at 03:15 PM | Permalink


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That doesn't help the people with the mandatory minimum. On July 24 my husband was sentenced to 120 months in federal prison for possessing 50 grams of crack. His guideline range was 87-108 months so even if the retroactive goes into effect whats going to happen to the people with the mandatory minimum. NOTHING!

Posted by: | Jul 26, 2007 3:35:54 PM

That doesn't help the people with the mandatory minimum.

Nor should it.

Posted by: | Jul 26, 2007 3:50:16 PM

If I am understanding this correctly, this would only help those that were sentenced above the mandatory minimum?

Posted by: | Jul 26, 2007 5:59:50 PM

That is correct. A mandatory minimum is mandatory.

Basically Congress writes statutes that say things like X offense is punishable by 5-20 years in prison. This means that a judge can never sentence a defendant convicted of X (or who pleads guilty to X) to less than 5 years or more than 20.

The Guidelines are supposed to help the courts figure out exactly where between 5 and 20 years they should sentence defendants who either plead guilty to X or are convicted of X at trial.

The Guidelines don't exactly match up with the statutes, though, so sometimes they'll suggest a sentence outside the range.

If a defendant commits crime X and the judge gives him 5 years, it doesn't help him if the Guidelines suggest that he get 4, because the judge can't give that sentence.

Posted by: | Jul 26, 2007 7:35:24 PM

I am the wife of a federal prisoner that has been incarcerated since 1991 for a convicion of 1 gram of crack cocaine. I commend the judge for her outspokeness about the retractivity of this admendment. It's wonderful and I hope it is successful! Thank you for your support!

Posted by: Dreama Padgett | Jul 26, 2007 9:32:52 PM

I am the wife of a federal inmate serving a sentence of 212 month for crack coaine charge on consipracy, since 1995. I commend the judge for speaking out for justice to prevail. I pray all goes well.
Thank you.

Posted by: Joanna Collins | Aug 6, 2007 12:52:53 AM

A Love one of someone that will benefit from the retroactive part of this law. It is a blessing to see the scales of justice balancing. For the good of any society , conflict is unavoidable,but the hopeful concluding outcome is or would be best for the greater good.
I am praying for the courage, faith,and strength for all of those who are placed in position to make a difference.
Thank you for the listening ear, and the opportunity to share my voice.

Posted by: Alicia Olds | Aug 6, 2007 7:57:20 PM

If you are sentenced to 4 years after nov 1st 2007 because of 3.5 grams How will it change my families sentence he pled guilty and got 4 years instead of the 70 months he was looking at.

Posted by: mar | Aug 8, 2007 2:44:56 PM

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