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November 2, 2007

Debate over retroactive application of new crack guidelines

This New York Times article spotlights that the Department of Justice officially opposes making the US Sentencing Commission's new crack guidelines retroactive:

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy. “The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”

Meanwhile, Harlan Protass has this op-ed in the Los Angeles Times making the case for retroactivity.  Here is how it ends:

Opportunities to neatly turn back time on social injustices are rare. The new crack sentencing scheme presents one such chance.  The Sentencing Commission should take advantage of this opening. To do otherwise is to compound the mistakes made when Congress first introduced harsh penalties for crack offenses.

Some related guidelines retroactivity posts:

UPDATE:  The Drug War Chronicle now has this effective feature on the crack amendment and the debate over retroactivity.

November 2, 2007 at 08:24 AM | Permalink


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Seriously, if the DOJ wanted to avoid a burden on the judicial system, they could simply stop arresting people. They could also concede in cases filed against the government.

Does anyone really believe that rhetoric?

Large-scale reductions in sentences could be easily accomplished, since, I think that most non-Booker adjustments could be done via stipulations.

Oh, they could also stop taking outrageous positions in GTMO cases.

Posted by: S.cotus | Nov 2, 2007 9:12:16 AM

Is there any legitimate public policy reason for supporting the new guideline, but opposing retroactivity? If the old guideline was wrong, it was presumably just as wrong in the past as it is now.

And even if it is retroactive, it is hardly a windfall. According to the Times article, it reduces the average sentence for crack possession from 121 months to 106 months—still a very substantial term.

Posted by: Marc Shepherd | Nov 2, 2007 10:38:20 AM

This points up the hollowness of much of the DOJ's (not to say the SG's) rhetoric about the necessity for "uniformity." As a matter of practice, the government desires uniformity only when it will raise sentences. Where as here, the application of uniformity would lower sentences or would conflict with its institutional convenience, they are completely opposed.

Posted by: David in NY | Nov 2, 2007 4:47:00 PM

One other feature worth noting. Well over 50% of those defendants affected by this amendment were sentenced in the Circuits of the Old South -- the 4th, 5th and 11th. What's up with that?

See the chart here: http://www.law.com/img/nlj/charts/20071022crack.jpg

Posted by: David in NY | Nov 2, 2007 5:17:00 PM

The unreasonable burden on our judicial systems is a farce. The figures have already been issued on how many sentences it will effect AND all BOP institutions have a department to handle and enter (or refigure) sentence calculations. Surely the Department of Justice would not support a continuing injustice!? Furthermore do they really want to take the stance that a so called "unreasonable burden" takes precedence over a miscarriage of justice?

Posted by: NLS | Nov 3, 2007 12:17:43 AM

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