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November 3, 2007

Judicial Conference urges retroactivity of new crack guidelines

Adding a very significant voice in the debate over making the US Sentencing Commission's new crack guidelines retroactive, the Criminal Law Committee of the Judicial Conference has sent a thoughtful and powerful letter to the USSC supporting retroactivity.  This detailed letter (which was authored by Judge Paul Cassell on his last day as a judge) can be downloaded below.  Here is the opening paragraph:

I am writing on behalf of the Judicial Conference’s Criminal Law Committee to recommend to the Sentencing Commission that its amendment lowering cocaine base (i.e., “crack” cocaine) penalties apply retroactively.  While concerned about the impact that retroactivity may have on the safety of communities, a majority of the Committee believes that the Commission’s precedents, and a general sense of fairness, dictate retroactive application.  The Committee also believes that the burden to the courts and probation officers associated with resentencings is not a sufficiently countervailing consideration.  The Committee’s recommendation rests on the hope that the Commission will implement procedures to reduce the administrative burden on the federal judiciary associated with the resentencings that would attend retroactive application. The Committee is prepared to help develop and implement such procedures and respectfully suggests that the Commission do what it can to put them in place before applying its amendment retroactively.

Download clc_letter_re_crack_retroactivity.pdf

Some related guidelines retroactivity posts:

November 3, 2007 at 07:40 AM | Permalink


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It is encouraging to see the Judicial Conference supporting the retroactivity of the crack guidelines on both policy and fairness grounds. It is equally encouraging to see the Judicial Conference voicing -- consistent with Booker and Rita -- "the long-articulated view of the Judicial Conference that sentencing guidelines should not deprive a judge of the discretion to reach an appropriate sentence." (Letter at p. 4), despite the fact that many of its Court of Appeals members have articulated different views in their written opinions. It is less encouraging -- and appears contrary to Booker and Rita -- to see the Conference advocating for a restricted kind of re-sentencing by suggesting that district courts in crack re-sentencing cases be limited to only the crack issue and not be able to impose a sentence that is sufficient but not greater than necessary to effectuate the sentencing aims. The mechanism suggested by the Judicial Conference would be a policy statement issued by the Sentencing Commission limiting district courts to consideration of the change in crack guidelines. In effect, it is suggested that an advisory policy statement to advisory-only guidelines would trump the Supreme Court's dictates in Booker and Rita and the legislative directive in 3553(a). This hardly seems consistent with the policies expressed in Booker and Rita and the restored faith in the ability of district court judges to properly weigh and balance the many factors involved. We all know that the current "fix" to the crack guidelines is a compromise position since the Commission was unable to convince Congress to pass the more fair version some years ago. We have also known for years that there was a racially disparate impact of the crack guidelines adherence to which -- once brought to the attention of the powers that be -- can only be described as shameful. It calls to mind Judge Young's observation about the sentencing guidelines in U.S. v. Kandirakis that "[f]or seventeen years federal courts had been sentencing offenders unconstitutionally. Thanks about that. The human cost is incalculable." The same can be said of the crack guidelines. To hamstring the district courts in the application of this watered-down political compromise would not promote the public confidence in the federal judiciary that the Judicial Conference intends.

Posted by: Sumter L. Camp | Nov 8, 2007 12:43:06 PM

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