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December 24, 2007

Local perspective on implementing crack retroactivity

My home-town Columbus Dispatch has this article on Ohio federal courts gearing up for implementing the now retroactive crack guidelines. Here are some excerpts:

At least 224 federal prisoners who were convicted here of crack-cocaine crimes could be released early, according to an estimate by the U.S. Sentencing Commission.  A Dec. 11 decision that allows sentences to be reduced won't take effect until March 3, but prisoners already are lining up to apply, officials said.

Phone lines have been ringing steadily with inquiries, said Steve Nolder, a federal public defender. And U.S. District Judge Gregory L. Frost said one inmate's request for early release has been on his desk since Dec. 17.

Last spring, the commission eased the sentencing guidelines for crack-cocaine offenses. On Dec. 11, it voted to make the reduction retroactive so that those already convicted could be eligible for early release.... Local judges said the change was long overdue. "It should have never been a 100-to-1" disparity, Frost said.  Decisions on how the changes will be instituted are forthcoming, but it appears an inmate must petition the court for early release, U.S. District Judge Edmund A. Sargus said....

The federal court's Southern District of Ohio, which includes Columbus, Dayton and Cincinnati, has slightly more than the national average of eligible cases. The Northern District, which includes Cleveland, Akron, Mansfield and Toledo, has 396 eligible cases -- the 12th-highest among the federal court's 94 districts.

I was intrigued by the article's assertion, apparently paraphrasing Judge Sargus, that "decisions on how the changes will be instituted are forthcoming."   Forthcoming from whom?  From the US Sentencing Commission?  From district courts through rules?  Are there folks at the Justice Department and in defender offices working on protocols for processing these motions for sentencing reductions in these crack cases?  In short, this inquiring blogger wants to know who has started working on a game plan for implementing the retroactive crack guidelines.

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December 24, 2007 at 08:27 AM | Permalink


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224 prisoners? I thought we were talking 20,000?

Posted by: DAG | Dec 24, 2007 10:44:58 AM

I think that there should differences made, between a career criminal who would likely not benefit from release, to a first time offender who made a one mistake and has a chance at rebuilding his life.

As much as I think that retroactivity is justcie, and should be applied to everyone. Judges also need to protect society, and not let anyone out who is a danger is will only stop the momentum of the sentencing reform movement.

Posted by: EJ | Dec 24, 2007 11:16:30 AM

Didn't you hear? There is going to be a "retroactivity summit" after the 1st of the year where many government (DOJ; judges; probation; federal defenders; CJA reps) stakeholders meet to "decide" these issues, and enjoy flights, accomodations and meals at taxpayer expense, even though there is nothing to decide (most prisoners will just get the two level reduction; some will press for more, most will not get it, and a few will, and DOJ will likely appeal only an egregious case that will shut that path down in the few cases where it works). I think it is somewhere in the south. Rather than just getting the reductions in place (and immediately for those who sentences are going to end), many people will meet to talk about it, and congratulate themselves. In the meantime, those presently completing unjustly long sentences will not get the reduction -- even 1 to 3 months -- that they should get, thanks to the Sentencing Commission. And, by the way, the law remains very very unjust, instead of very very very unjust. And proper assistance for prisoner re-entry will continue to be ignored. Merry Christmas to all.

Posted by: Summit non-attender | Dec 24, 2007 2:08:24 PM

To non-attender - let me tell you, NC in mid-January is no boondoggle. There are numerous implementation issues to be resolved (which I can't go into) - unless you think the USSC delayed the date until March 3 just for the hell of it?

Posted by: anonymous | Dec 25, 2007 11:46:35 AM

There may have been reasons why it was delayed -- secret and unstated as they apparently are -- but they are not good or compelling reasons. They are simply administrative ones, or, rather, bureaucratic ones. Everyone at the district court level can handle the issues that are present (or not present) in the same way that these things are always handled -- by lawyers litigating, and judges deciding/judging. Just as, for example, things were done after Blakely and Booker -- instances that presented far more complex issues against a more unsettled landscape. All defense attorneys I know have already identified eligible clients and are preparing to file motions to try to get a reduction before March 3 for clients whose sentences are soon up. They are preparing, where they think a judge will be receptive, requests for full re-sentencing (or in cases that would be good candidates to make law on appeal where there is not an appeal waiver and there are not "bad" facts/procedural posture). They are preparing, where necessary, FRAP 28(j) letters based on the amendment and two recent Supreme Court decisions (while steeling for government 28(j) letters where the appellate court is considering an above-the-range non-USSG/variance sentence.) They may have already filed these things. The only thing delay does is to allow the formulation and nationalization of a procedure (through willing, passive stakeholders and judges) to adhere to what the Sentencing Commission's view of its power and its amendment is, and, ultimately, to ensure that the reduction applies to the least possible number of people (by the same Commission that promulgated, per Congress, a sentencing system that was unconstitutional and resulted in unconstitutionally imposed sentences on almost every sentenced federal criminal defendant for 17 years, and which filed briefs defending such unconstitutional system). And those reasons? It sounds much like warrantless wiretapping, blanket anonymous juries, courtroom restraints and stun belts as a matter of course, and government prior restraints -- we can't tell you why these are needed or don't have a good, case-specific reason, but trust us. That doesn't pass the smell test -- much less the justice test. So delaying to March 3 may help the Commission and its staff and DOJ (and be embraced by others), but it does not in any way contribute to justice.

Posted by: Reasons | Dec 25, 2007 7:57:57 PM

There are 94 Federal Judicial Districts and 20,000/94 = 213 so 224 is fairly close to the average per district. No doubt some districts will have several times the average and others will be below the average.

Posted by: John Neff | Dec 25, 2007 9:50:04 PM

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