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November 5, 2007
DOJ and FPD advocacy to the USSC about crack amendment retroactivity
A helpful reader has made sure this blog could provide a full account of the debate over the retroactivity of the crack amendments by sending me the Justice Departments (anti-)retroactivity letter and the federal defenders (pro)retroactivity letter. These lengthy letters can be downloaded below:
Download doj_crack_retroactivity_letter.pdf
Download defender_crack_CH_retro_comments.pdf
November 5, 2007 at 03:23 PM | Permalink
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Comments
Is it really legitimate, in the criminal context, to consider the burden on the court system? For one, the court system can assess its own burdens. Secondly, if as either a legal or policy matter the FSGs should be retroactive (i.e. there would be more justice) why would anyone want to pinch pennies.
Assuming for arguments sake that the FSGs were unjust, is the government really arguing that the cost of making them more just is so great that we must tollerate at least 20,000 bits of injustice? Would the government be arguing that retroactive effect is not that bad if only 1,000 sentences were impacted, and therefore the situation is comparatively more just (but still unjust)? Would the government be arguing that the sentences are even MORE set in stone if 1,000,000 people were serving sentences that were too long?
Now, as I have said many times, the government can reduce the burden on the court system by simply not arresting people.
Posted by: S.cotus | Nov 5, 2007 3:44:08 PM
The "burden on the courts" argument is nonsense, and the DOJ knows it. If every criminal defendant in the federal system insisted on taking their case to trial, the system would crash and burn. Moreover, they do things that encourage burdens on the court. For example, if the defendant can be charged with two statutes, one with a mandatory minimum of five years, the other without the mandatory minimum, they'll offer five years on the statute without the mandatory minimum; they've just created an incentive to take the case to trial.
The DOJ is not interested in the administrative burdens or the imagined "disparities" or Booker horrors that retroactive application will have in their scare scenario. Under Herr Gonzales they were urging the guidelines be replaced with mandatory statutory minimums. The DOJ has never met a sentence it considers too harsh.
Posted by: Alec | Nov 5, 2007 10:32:54 PM
None of you think there would be anything wrong with a District Judge issuing a Booker variance down to probation for every crack offender resentenced under retroactive application of the amendment? If not, then none of you have met a sentence that is too lenient.
Posted by: Da Man | Nov 6, 2007 11:46:06 AM
None of you think there would be anything wrong with a District Judge issuing a Booker variance down to probation for every crack offender resentenced under retroactive application of the amendment?
Who here was advocating that, silly?
Posted by: Dcounsel | Nov 6, 2007 12:33:07 PM
No one wants to say it publicly, but nothing will stop a defense attorney from requesting that a District Court use its Booker discretion at resentencing to impose any sentence that fancies it.
Posted by: Da Man | Nov 6, 2007 1:15:33 PM
Da Man, But in some circuits (perhaps all), the DCT must first calculate the FSG sentence before entertaining Booker arguments.
Posted by: S.cotus | Nov 6, 2007 2:47:23 PM
S.cotus --
What's the point of your observation? The point of mine is that many District Courts resentencing defendants under the retroactive crack amendments will most assuredly vary from the new, lower Guidelines range, effectively giving defendants whose convictions were final when Booker issued the retroactive application of Booker's remedy, clearly not what was intended. But I bet you see nothing wrong with that because you believe that Guidelines were substantively unfair when they were manditorily enforced.
Posted by: Da Man | Nov 7, 2007 9:50:26 AM
DaMan, I don’t know where you get the notion that “Guidelines were substantively unfair when they were manditorily enforced” from? What do you base this on? Are you just one of those people who thinks that anyone that questions their view of criminal justice is “soft on crime” or some other crap the non-lawyers sling at each other? Perhaps I would have done them differently. As a policy matter, I think they did not result in a large enough percentage of the country being incarcerated.
Luckily, post-Booker, judges have tended to sentence above the guidelines in all but some areas. Because this will result in a higher percentage of the country being in jail I generally feel safer. I think this country is at risk of the punks taking over so long as under over 65% of the country remains free.
There is no assurance that a District Court resentencing someone under a retroactive guideline would sentence them below THAT guideline. In fact, it is unclear whether Booker would even apply to these cases. Whatever the case, the Supreme Court might have to revisit that issue.
Anyway, hopefully, in the near future we can work together to keep the country safe by keeping more Americans in jail.
Posted by: S.cotus | Nov 7, 2007 3:47:30 PM
S.Cotus --
That's the message I took from your posts. I absolutely do NOT want judges using Booker discretion to give an even bigger break to defendants who receive the reduction, but I can tell you right now that some judges will say "anything goes."
Posted by: Da Man | Nov 7, 2007 4:25:14 PM
