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November 13, 2007

A report on the USSC crack retroactivity hearing

I am pleased to be able to provide, thanks to a person self-described as a "DC Wonk," this informative report sent to me by e-mail concerning today's US Sentencing Commission hearing about the possible retroactive application of the new crack guidelines:

I have no experience reading tea leaves, but it sure seemed to me that the USSC is grappling with *how* to implement retroactivity, not *if* they should.  That they will vote to implement seems a foregone conclusion.

The major issue seemed to be: would Booker apply to an inmate who was initially sentenced before Booker, and is now applying to get his sentenced reduced under retroactive application of the two-level reduction.  Those who are against retroactivity argued that "of course it applies," as they tried to demonstrate the huge caseload that will clog up the entire federal court system. (Repeated cites to the figure of 19,500 to whom retroactivity might apply.) One of the commissioners noted that Booker would apply according to Hicks, but that Hicks is only applicable in the 9th Circuit where only 500 of these 19,500 are; but that the 4th Cir views otherwise, and 5,000 (of the 19,500) reside there.

Another interesting observation: for the most part everyone was polite and cordial, with one exception. The spokesperson for DOJ, the USA from West NC was pretty extreme in her language (most of her presentation was anecdote) and a bit misleading with some of her stats.  She was the only witness (as of 1:00 pm) to face any hostile questioning. If anyone was wavering (itself a dubious proposition), she did her cause damage.

Most interesting was Prof Chanenson (Villanova) who argued that 3582(c)(2) was *not* a resentencing, but more like an "equitable sentencing procedure", and therefore Booker had no relevance, and that the USSC and/or Congress would have the right to make this retroactivity fairly restrictive (so as to minimize the burden on the courts, on the Marshals who have to transport prisoners, etc.)  The Prof had a number of other suggestions to minimize the impact of resentencing on the federal system, and the USSC seemed most interested....

All in all, a few commissioners seemed to almost openly support retroactivity (particularly Castillo, Howell, and Sessions); I suspect Hinojosa is sympathetic (although he was "above it all" as chair); John Steer said that he agreed with the Prof that Booker wouldn't apply; Horowitz seemed sympathetic; Friedrich asked a question that was unflattering to DOJ.

In summary here: there were some statements that seemed to indicate favor to retroactivity, and some neutral. I didn't see any from any Commissioner to indicate s/he was against. I find it hard to see how anyone can scrounge four votes against retroactivity....

I am very pleased to hear that the Commissioners were in sync with Professor Steve Chanenson's insights.  I had the good fortune to talk with Steve as he was putting together his testimony, and I agreed with 99.9% of what he was planning to say to the USSC.  I have provided for downloading below Steve's written testimony, which is both effective and fascinating on many levels.

Download chanenson_ussc_testimony_november_13_2007.pdf

November 13, 2007 at 04:16 PM | Permalink


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When do they let us know?

Posted by: David in NY | Nov 13, 2007 5:52:41 PM

I think some one mention that they are not likely to announce a decision until January.

Posted by: EJ | Nov 13, 2007 6:37:11 PM

I'd be interested to hear from anyone that thinks Professor Chanenson's legal argument for why a booker re-sentencing would not be necessary is wrong.

Posted by: Curious | Nov 13, 2007 7:04:22 PM

I'd like defense attorneys to pledge that they will not argue that district courts should invoke Booker to impose variance when resentencing under the retroactive amendments....

Posted by: Da Man | Nov 13, 2007 10:04:21 PM

Justice might be too much of a burden on the courts. Doesn't that imply it is best to leave that burden with the executive branch (prisons)?

Is that what the balance of powers means?

Posted by: George | Nov 13, 2007 10:11:41 PM

What's funny is that the commission has already decided that the guidelines were too harsh. Why should a person sentenced today get justice and the one yesterday not. Not mention that a 2 year difference is not a big difference for a draconian sentence of 15 or 20 years.

Posted by: EJ | Nov 13, 2007 11:22:06 PM

I'm always skeptical and dismissive of "it will open the floodgates of litigation" arguments, especially in the criminal appeals context. If justice requires 20,000 cases to be re-opened, then that's what needs to be done. Maybe it will provide for some new administrative jobs in the courts. New jobs are always something politicians speak of as a positive thing. And if they only mean private sector jobs, they shouldn't whine when I say we should get rid of the IRS and DEA (no income tax, legalize drugs and tax them) because all those lovable agents will lose their jobs (and shiny badges).

Posted by: bruce | Nov 14, 2007 3:01:47 AM

“I'd like defense attorneys to pledge that they will not argue that district courts should invoke Booker to impose variance when resentencing under the retroactive amendments....”

Why the hell should they do that? At its heart, Booker is a constitutional decision, and such a pledge would be a pledge to not follow the constitution? This doesn’t seem very American.

Bruce, While it might be nice to “get rid” of the IRS, we still need some plan for collecting money for legitimate government operations. While many of us would agree that the “drug war” is a waste of money, there probably are at least some government functions we would agree on. Or, perhaps, maybe you think that the government’s revenue would come from taxes. Also, since you propose to tax legalized drugs (and eliminate the IRS), I am curious as to who would administer this tax.

On the other hand, I completely agree that the “open the floodgates” is silly. First of all, more money would be saved by letting people out of jail. (Though there would need to be some inter-agency reallocation.) Secondly, if the courts actually are overburdened, they are capable of dealing with this issue. Third, I seriously doubt that most of these adjustments would take too much time, because everyone probably would agree on what should be done. And finally, if the government was really that concerned about the burden on courts, it could simply not arrest people.

Posted by: S.cotus | Nov 14, 2007 6:22:36 AM


So people on this Blog can call on prosecutors to agree that Booker won't apply to these resentencings, but defense attorneys can reserve the right to argue that district courts can impose a sentence even lower than the one that results from retroactive application of the amendments? This is proof that if you give an inch, they take a mile. I want Congress to pass a law saying that these aren't resentencings, but merely an equitable reduction in a pre-established range. Then I'll be perfectly happy with retroactive application.

Posted by: Da Man | Nov 14, 2007 11:50:24 AM

Da Man, Yes. First of all, Federal Prosecutors can agree to take certain positions in court since they all have the same client – the USA. (In truth, there are some positions that government takes nationally and some positions that only certain US Attorneys take.) Defense attorneys have many as many clients as there are defendants, all of which might have different situations.

The government often has good policy or strategic reasons for not doing certain things, moreover a series of executive orders directs government attorneys not to do certain things in litigation that private litigants would be within their rights to do.

It would be a grievous violation of one’s duty to a client (as well as grounds for disbarment) for an attorney to agree, before consulting with a client to waive an argument on behalf of a criminal defendant. However, it would simply be “policy” for a government attorney to agree that it should not assert some arguments.

Secondly, there is now agreement by the USSC and by Congress (since they did not intervene in the specified time period) that the disparity was unjust. While obviously there might be some that disagree with this, they were unable to convince the USSC or Congress that the disparity was just. The only question that remains is that the conceded unjustness isn’t a problem for people already in jail.

You appear to be conflating various straw-man political arguments (in which advocacy for individual criminal defendants is considered a political viewpoint) with actual legal arguments. This might fly on talk radio, so you might feel more comfortable there.

Posted by: S.cotus | Nov 14, 2007 12:48:43 PM


You are missing the point. People on this blog have suggested that the DOJ's concern -- that judges resentencing crack offenders could invoke Booker to let the offenders simply walk out of jail -- is untenable. But you seem to believe there would be no problem with a defendant arguing that he should get, not just the 17-month break ordered by the Commission, but maybe a 5-year break through the retroactive application of Booker to his "resentencing."

Of course defense attorneys are going to make that argument; their job is to get the lowest possible sentence for their client regardless of policy concerns. But the concerns about Booker's potential effect are real, and they sure do (or ought to) factor into the question whether to make the amendments retroactive. Apparently you don't agree; you think that if an intended 17 month reduction might make a defendant eligible for a 17-year reduction, so be it. Speaks volumes about your criminal justice perspective.

As I said (which you ignored) if someone convinces me (or if Congress legislates) that Booker variances can't be imposed, I'm all for retroactice application of the crack amendments.

Posted by: Da Man | Nov 14, 2007 1:04:11 PM

Missed in all of this finger pointing -- the USSC, prosecutors, SCOTUS, defense attorneys, marshals, judges, naked bloggers, crackheads -- is the parties who are really responsible and OUGHT to fix their own boo-boo: CONGRESS.

Posted by: dweedle | Nov 14, 2007 2:40:32 PM

will this affect state laws?

Posted by: thomas rooney | Nov 14, 2007 4:20:37 PM

Thomas, No. Not directly. I can't think of how it would indirectly impact state sentences, either.

Da Man,

First of all, I should note that the commission is not – nor does it have the power to – order anything.

Second of all, I don’t see what the problem of a Booker re-sentencing is. If Booker corrected an unconstitutional part of a statute, then it would be unconstitutional for judges to continue to do things that are unconstitutional. But, I acknowledge that whether a defendant is constitutionally re-sentencing under Booker when there exists an independent basis for re-sentencing is an open question. (For some defendants this might be a bad thing, as Booker could result in a sentence that was higher!)

I don’t know what you are talking about regarding my “criminal justice perspective.” Are you some kind of non-lawyer calling me “soft on crime.” Remember, it is ME that has argued for a 35% incarceration rate just to scare non-lawyers into understanding our power. It is ME that has argued that a 50% error rate in death penalty application is not only acceptable but desirable. What is your “criminal justice perspective.” What incarceration rates and error rates do you find acceptable?

Posted by: S.cotus | Nov 14, 2007 4:36:37 PM

Da Man, I fundamentally cannot see your point in this statement: "the concerns about Booker's potential effect are real, and they sure do (or ought to) factor into the question whether to make the amendments retroactive."

What are these "concerns about Booker's potential effect" that you speak of? You posit that if Booker is applied during these re-sentencings, then some crack offenders would get a larger reduction than they would simply by applying the amendment. Well, what is the "concern"? If this does happen in a few cases, it's only because a federal judge looked at that particular defendant and concluded, "now that I can sentence this person in a constitutional manner, and do not have to strictly follow the Guidelines (even as amended), I will finally impose a just sentence under 3553(a)." Why is that so bad? (Note that even if Booker is applied at the re-sentencings, judges still cannot sentence below the mandatory minimum).

Granted, the "concern" may be in the administration of such re-sentences, and I am not naive to that point. But your commentary only seems to speak about the "concern" of lesser (more just) sentences for some offenders.

Finally, I have seen many suggest (including S.cotus at 4:36:37) that if Booker is applied during 3582(c)(2) re-sentencings, then the defendant could actually get a higher sentence. However, under the plain language of 3582(c)(2) a court does not have the power to increase an offender's sentence during these proceedings; the court only has the authority to "reduce the term of imprisonment."

Posted by: DEJ | Nov 14, 2007 5:16:56 PM

How does this affect crack cases that are pending in the appeal courts?

Posted by: Stiff | Nov 14, 2007 5:42:58 PM

S.cotus is famous (now infamous) for accusing people whose viewpoints he disagrees with of being lawyers. Well, I am a lawyer and a prosecutor to boot. And I don't favor certain rates of incarceration; that's not what sound criminal justice policy is all about. S.cotus sounds more like a judge running for office in, say, Alabama, than someone with something of substance to contribute to this Blog.

That said, and more to the point, I favor retroactive application of the crack amendments, but I don't see why -- if Booker is not retroactive for Teague purposes -- Booker should become retroactive and provide a windfall reduction for those defendants who happen to draw judges who disagree with the sentencing guidelines. The notion that these defendants would be resentenced to the term they should have received all along (if the Guidelines had not been mandatory) is silly. They had no right to be sentenced under an advisory Guidelines regime (since their convictions were final when Booker issued), and so the grace of the sentencing commissions should not provide judges with a way to make a non-retroactive decision retroactive.

At all events, I think the 9th Circuit was wrong to say Booker applies, but it's going to cost the Government (including money for public defenders) a fortune to sort that out over time.

Posted by: Da Man | Nov 14, 2007 9:48:15 PM

Da Man: I don't agree that applying Booker in a resentencing based on the crack guidelines would constitute applying that decision retroactively. I would take the position that if another rule of law is applied retroactively, in this case the crack amendments, the original proceeding is reopened. As it is then currently pending, the district court would be obligated to apply existing SCOTUS law.

Posted by: JustClerk | Nov 15, 2007 10:13:35 AM


So the other uneducated people you speak of ARE also the non-lawyers that you hold dear to your heart, you know like your mate, your mother, your children, etc.
You do not have to be a lawyer or even a member of the legal profession to be able to make an informed, educated and reasonable decision. So who/what were you before you became S.COTUS? Uneducated??? Hummm... Stop throwing a tantrum when someone does not agree with you. You spout off like a little boy in all the post when someone disagrees, as Da Man has pointed out before...
And last but no least, to qoute you: the DOJ should just stop arresting people. Problem solved.

Posted by: Stiff | Nov 15, 2007 10:49:11 AM

by the way this was in reference to the comments he made on the other story, but Im sure he knows...

Posted by: Stiff | Nov 15, 2007 10:51:33 AM

Yeah S.cotus, stop being a meanie.

Posted by: dweedle | Nov 15, 2007 10:53:12 AM

Dweedle, Wait until he gets out into the real world, where non-lawyers are not liked.

Da Man, First of all, you made a few mistakes. I have never accused someone with whom I disagree of being a lawyer. Instead, I have made specific allegations that people were NOT lawyers. So, in fact, the precise oppose of what you say is true. (Federalist and others have admitted that they were not lawyers.) The fact that you are a prosecutor does not change this.

Whether you think that something is “sound” criminal justice policy doesn’t make something sound or not. Personally, I think high rates of incarceration (perhaps at the expense of accurate fact-finding) is a sound policy, because it will instill a healthy fear of the law in potential law-breakers out there.

Indeed, I think the retributivist interest is served by convictions of for crimes they did not commit. When people understand that the criminal justice system is capable of providing justice to a certain class of people (i.e. the lower 35% of the population), they will have confidence in the government to discipline evil-doers and potential evil-doers, as well as people that engage in disagreeable behavior that isn’t quite a crime but can be agreed by the remaining 65% to be nasty.

Anyway, to get to the substance of your post (which is buried under all these non-substantive insults.) The fact that something isn’t retroactive for Teague purposes don’t mean that it is not retroactive for other purposes. In the case of a revision of the guidelines, as witnesses have testified to before the commission, it is a statute, rather than a valid collateral attack that is mandating re-sentencing of these prisoners. Therefore, the sovereign has no interest in finalty, since it, itself has created the exception to finality. See Teague at 308 (“Rather, we have recognized that interests of comity and finality must also be considered in determining the proper scope of habeas review. ”) Therefore, the whole “new rule” mechanism isn’t applicable.

Anyway, sure it will cost the government lots. But, the policy decision to put all these black people in jail has cost them more. In the long run, it will cost them less as lots of prison guards can be shortly laid off.

Posted by: S.cotus | Nov 15, 2007 12:06:52 PM

See, all I have to see is:

"I think high rates of incarceration (perhaps at the expense of accurate fact-finding) is a sound policy, because it will instill a healthy fear of the law in potential law-breakers out there"

and I stop reading because I know that whatever follows -- no matter how rational and well-reasoned it may sound -- comes from a terminally silly person.

By the way, I agree that Teague has little to do with the issue, but I'm sure that Congress did not intend those being given the grace of a specific sentence reduction made retroactive by the Commission to receive a windfall sentencing reduction for other, unrelated grounds. The same rules should be in play when the defendant is resentenced as were in play when he/she was originally sentenced.

Posted by: Da Man | Nov 15, 2007 1:59:53 PM

Da, “and I stop reading because I know that whatever follows -- no matter how rational and well-reasoned it may sound -- comes from a terminally silly person.”

This would have made sense, have you not only continued to read the text that comes below, and then commented on it. Therefore, it seems that you assertion that you stopped reading lacks truth. In fact, it has absolutely no truth to it. Zero. It has been empirically disproved. With logic.

My assertion that random justice serves retributivist ends is not something that I made up.

To get to the point, there are many people out there that will tell me time and time again that the 3553(A)(2)(a) factors require sentences to be determined based on a need to “to promote respect for the law.” This never made sense to me, because I thought that the very existence of the democratic process was supposed to do the promoting of respect for the law. Then I realized that the drafters of 3553 assumed that sentencing was a function not of guilt-finding or fact-finding, but rather of simply making it clear that the government is in charge, and it must be respected. So, 3553 directs judges to do whatever it takes to be respected. This means either: 1) acting smart (i.e. like intellectual law-givers); or 2) tough (like angry professional wrestlers on daytime talk radio).

Secondly, Kent Scheidegger, a man whose name I can spell without looking it up because I am indisputably very smart and everyone loves me, in the brief he filed in Panetti wrote “Our own review of the writings of leading modern advocates of the retributive theory of punishment find no support for the notion that the perpetrator’s mental state at the time of punishment is a major or even significant consideration in the retributive value of punishment.” Indeed, I agree with him: society is best served when people are punished, even if they did not or could not form the intent to do what the jury thought they did. Heck, even if they didn’t do what the jury thought they did, they should be punished. Society has decided that some people should be punished! The brief goes on to quote Moore’s treatise and writes “The good that is achieved by punishing, on this view, has nothing to do with future states of affairs, such as the prevention of crime or the maintenance of social cohesion. Rather, the good that punishment achieves is that someone who deserves it gets it.” There are some people that because of their position just deserve it.

As to the intent of Congress regarding Booker implications, you might have a better argument there. However, and this might be a fundamental disagreement about the nature of statutes, I don’t think that the intent of Congress is at all relevant unless there is some real ambiguity in the statutes. Look at 3582(c). Here, let me help you, “In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994 (o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” I don’t really see anything ambiguous about that. In fact, it seems that Congress ***** EXPLICITLY ***** said “We don’t care about finality when the Sentencing Commission does something. On top of that, Congress also said that the 3553(a) are again in play. Now that Booker has breathed new life into the 3553(a) factors, it would seem that a court would have to apply them.

Posted by: S.cotus | Nov 15, 2007 2:32:48 PM

See, all I have to see is:

"I think high rates of incarceration (perhaps at the expense of accurate fact-finding) is a sound policy, because it will instill a healthy fear of the law in potential law-breakers out there"

and I stop reading because I know that whatever follows -- no matter how rational and well-reasoned it may sound -- comes from a terminally silly person.

By the way, I agree that Teague has little to do with the issue, but I'm sure that Congress did not intend those being given the grace of a specific sentence reduction made retroactive by the Commission to receive a windfall sentencing reduction for other, unrelated grounds. The same rules should be in play when the defendant is resentenced as were in play when he/she was originally sentenced.

Posted by: Da Man | Nov 15, 2007 4:09:48 PM

Ok -- so there's a glitch in my browser. My substantive comments responded to JustClerk, not to S.cotus.

So let me throw it open: can a defendant who should receive, at most, a 17-month reduction under the retroactive crack guidelines obtain a five-year reduction because a Judge decides that the only thing limiting his/her discretion is the statutory minimum (with a nod to the § 3553(a) factors)? If the answer is "yes," then Congress can and should legislatively decree that sentences cannot be reduced below what the COmmission's reduction allows. That does not work any Booker violation, since you are simply limiting the extent of the downward reduction (as opposed to ordering District Courts to manditorily enforce the Guidelines).

Posted by: Da Man | Nov 15, 2007 4:31:25 PM

Too late. You already responded substantively to me.

If Congress wanted to do that, they could. Whether it would be effective would be another story. Whether such a sentence would be Booker reasonable would be another as well.

Congress seems to not want to interfere with the USSC at the moment, and the DOJ probably won't be doing anything major legislatively until President Hillary takes office.

Posted by: S.cotus | Nov 15, 2007 4:54:23 PM

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