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August 23, 2007

ABA makes pitch for USSC crack amendments to be made retroactive

Yesterday, the American Bar Association submitted a letter regarding the US Sentencing Commission's 2008 priorities.  The ABA letter, which is mostly focused on arguing that the USSC should make its new crack amendments retroactive, can be downloaded below.  Here is a snippet:

Over the years, the Commission has amended the drug guideline with the effect of lowering sentences in particular drug cases, and in each instance, has made the amendment retroactive by including it in the list of amendments eligible for reduction under Section 3582(c)(2)....

The Commission’s current proposed amendment to Section 2D1.1 -- that would modestly reduce offense levels across the board for crack cocaine -- is intended as an interim measure to alleviate the “urgent and compelling” problems associated with the 100-to-1 crack-to-powder ratio.  At the very least, principles of fairness, consistency, and proportionality should likewise lead the Commission to include this amendment in the list of amendments eligible for reduction under Section 3582(c)(2).  The relevant factors weigh in favor of making the amendment retroactive:

Since 1995, the Sentencing Commission has consistently taken the position that the 100:1 ratio was unwarranted from its inception, and has a racially disparate impact.  The Reason for the May 11, 2007 Amendment notes that the Commission set drug quantity thresholds to produce base offense levels corresponding to guideline ranges above the statutory mandatory minimum penalties.

The amendments to the drug guidelines related to LSD, marijuana, and oxycodone and made retroactive have generally benefited caucasian defendants. Given the racially disparate impact of the 100:1 ratio and the public perception that our drug laws are racially discriminatory, making this amendment retroactive is the only fair and principled course.

Download aba_letter_ussc_08_priorities_82207_1.doc

August 23, 2007 at 03:03 PM | Permalink


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Tracked on Aug 23, 2007 3:29:28 PM


The ABA doesn't say, but a back of napkin estimate of the impact is possible.

As of 1998 there were about 11,000 people in federal prison for crack cocaine offenses. There are surely as many and probably more now.

Some of those people would still be in prison right now, even if sentenced under powder cocaine guidelines, probably, at least a third of them would be based upon the relative lengths of the average sentences (a little under two years v. a little over five years).

So, retroactive crack sentencing reform could reduce the number of people in federal prison by on the order of 8,000 people (about 90% African-American), and would reduce the number of inmates in federal prison by on the order of 5%.

This would be equivalent to perhaps doubling the number of felons released from prison nationwide from state and federal prisons combined in a single month, although, of course, the impact would probably be more diffuse as it might take six months to a couple of years to sort most of those cases out, thus, producing something closer to a year long 10-15% a month surge in prison releases.

Of course, this would be cold comfort for those near the end of their sentences, while it would be a substantial benefit to those early in their sentences (with the full benefit realized by the roughly a third who do not receive immediate release).

The prosecution argument, of course, would be that prosecutors would like an opportunity to resentence with acquitted or uncharged conduct in mandatory minimum cases that may not have been argued or presented when there was solid evidence of a straight crack cocaine offense, because it would simply be time consuming gilding of the lily.

Posted by: ohwilleke | Aug 23, 2007 3:44:30 PM

I would like to find out the actual number of Federal prison inmates who are serving a sentence for drug possession. I found from the BOP web page there are about 98,000 federal prisoners with a drug charge as the most serious offense and a BJS report on drug use by state and federal prisoners in 2004 that said that there were 70,000 federal drug prisoners then and 95% of them were charged with trafficking. I am rather skeptical about these numbers because one would think that if there were an increase of 28,000 drug offenders in federal prison in three years someone would have noticed. I am also skeptical about the 95% trafficking claim.

I know that the Department of Energy has stuff on their web page that is obvious hogwash and maybe that is also the case for the DOJ and the BOP.

Posted by: JSN | Aug 23, 2007 9:29:27 PM

Well, let's see - an increase of 28,000 over 3 years is approximately 9,000 per year, or 180 per week. There are 90+ federal districts. So, that works out to an average of 2 crack defendants sentenced, per district, per week. doesn't sound unlikely to me! Best estimate is that approximately 30,000 inmates (out of a total federal population of apprxomately 200,000) might be eligible for sentence reductions if the crack reduction is adopted, and applied retroactively.

Posted by: anonymous | Aug 23, 2007 10:56:16 PM


My personal opinion is that BJS numbers are as precise and reliable as any numbers you find in the criminal justice field. I generally find BJS to be an organization of highly trained statisticians with an excellent quality control system. BOP, in my experience, is less precise when it comes to providing information to outsiders (though they have improved in recent years).

However, I do have one major complaint about the BJS: there are some statistics they reliably track from year to year, which makes possible comparisons across years. But there are other statistics that they only report every few years, or that they've stopped reporting all together, or that they've measured in different ways over the years. (The statistics regarding the size and composition of youth gangs, for example, is one area in which I've been frustrated by the lack of consistency.) And in my opinion, sometimes those decisions - about what numbers to report - are guided by political considerations. DOJ is of course political (obviously), but I wish the work of scientific agencies like BJS were less influenced by politics.

I'm not sure exactly which BJS documents you refer to, but according to BJS's "Prisoners in 2005," drug offenses were the most serious offense for 52,782 federal prisoners in 1995, 74,276 federal prisoners in 2000, and 86,972 prisoners in 2003 [see http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf]. In 2004, according to BJS, of federal prisoners convicted of drug offenses, 91.4% were convicted of trafficking (or reported intent to distribute, whatever that means), 5.3% were convicted of possession, and 3.3% were convicted on other drug charges [see http://www.ojp.usdoj.gov/bjs/pub/pdf/dudsfp04.pdf].

Two things about those stats that I've heard from others with much, much more experience with the system:
1. Prosecutors obviously have discretion over which cases they bring, and federal prosecutors often kick simple possession cases back to the state.
2. Intent to distribute/traffic can be inferred based on the quantity of drugs someone is caught with, and "sentencing reform" over the past twenty years often entailed lowering the amount of drugs required to bring distribution charges.

Posted by: law student | Aug 23, 2007 11:07:56 PM

Using law students figure of 5.3% convicted of possession and 98,000 drug offenders the estimated number of federal prisoners sentenced for possession is 5,200. That is a lot smaller than 30,000 and amounts to 2.5% of the total number of BOP inmates.

Posted by: JSN | Aug 24, 2007 9:28:21 AM

Ummm, JSN, I think you're laboring under a misconception. The crack guidelines, if amended and applied retroactively, are not limited to those convicted of possession. They will apply to those convicted of distribution as well. And, if adopted but NOT made retroactive, they WILL apply to those convicted of distribution in the future.

Posted by: anonymous | Aug 24, 2007 7:18:17 PM

Ok how does one determine the number of federal prisoners who are subject to the crack cocaine rules? Evidently there are some people who buy power cocaine convert it to crack and and then distribute the crack so they can be charged with both possession and trafficking, but not all federal prisoners charged with trafficking do that. Of the 80,000 federal prisoners with trafficking as the most serious charge how many are subject to the crack rules? If it more than 25% the 30,000 estimate is probably not that far off.

Posted by: JSN | Aug 24, 2007 8:40:16 PM

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