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December 3, 2007

Seeking to clear up Clintonian confusion on crack retroactivity

In the wake of crack retroactivity discussion by the Democratic presidential candidates, the ACLU has issued this new press release to "correct misconceptions about retroactivity."  Here are excerpts:

  • All offenders would first have to go before a court to have their case reviewed and argue that they are fit to be freed.  People would not automatically be released from prison. Offenders who qualify for release under the new guidelines would have to appear before a judge, who would make the decision as to whether the person should be released from prison.

The following can be attributed to ACLU Legislative Counsel Jesselyn McCurdy:  "The USSC changed the crack cocaine sentencing guidelines last month because the commission realized they were unfair. It makes no sense to call a law unjust and in the same breath say it should still apply.  Retroactivity doesn’t mean prisoners will be released en masse; it means the mistakes in sentencing that have gone unchecked for decades will be corrected. Prisoners arrested for federal crack cocaine offenses who have served their time should serve only their time."

Though the press release does not fully explain who may be responsible for "misconceptions about retroactivity," it is obvious that Hillary Clinton is the chief culprit.  As previously discussed here, Clinton this past weekend echoed comments by President Bush's Justice Department (noted here) and Republican members of the House Judiciary Committee (noted here) when indicating she is against retroactive application of the USSC's new crack guidelines.

I am pleased to see the ACLU trying to make sure facts and not fear drive this important sentencing reform discussion.  I hope other sentencing reform groups like FAMM and The Sentencing Project will follow suit.

December 3, 2007 at 09:19 PM | Permalink


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"ACLU" and "facts" are two words that I rarely see in the same sentence. Don't you think the ACLU is misrepresenting the "fact" that almost all of these offenders will be granted earlier release? For all of Rita's rhetoric, most district judges are still going to follow the guidelines because doing so is the safe bet, and that also means they will follow the guidelines' instruction on retroactivity.

Posted by: Steve | Dec 4, 2007 9:24:19 AM

Steve, Most people that criticize the ACLU are doing it on the basis of rumors and some sort of emotional reaction. In my experience, very few of them actually know what the ACLU’s positions are, despite the fact that the ACLU puts most of its briefs on its website. (Any missing briefs are usually because the government has moved to deal them.) To me, it is quite unAmerican and downright evil to speak of an entity’s position without at least reading it. (This goes for the government as well.)

But, let me give you the benefit of the doubt. I am going to assume that you are not one of the anti-American lowlifes that speaks of the ACLU’s position without reading their filings.

The ACLU’s position seems to be as follows:
The new crack guidelines should be retroactive because the USSC and others have acknowledged that the old ones were unjust and it makes no sense to simply declare that it is “too bad” that people were sentenced before the revised guidelines. However, the exact effect any change in the guidelines must be ascertained on a case-by-base basis, with the convict appearing before a judge who will ascertain to what extent (if any) his sentence should be reduced. Because of this judicial intervention, there is little or no danger that truly dangerous felons will receive an overly large benefit.

Steven, if you think I am misstating the ACLU’s position, please say so. If you disagree with the ACLU’s position (and you argue that the guidelines would change sentences without judicial intervention in contravention of the statute), then please explain why you think so.

Posted by: S.cotus | Dec 4, 2007 10:56:51 AM

I don't know who Steven is, but I'm going to guess that you meant to address me. Despite your knee-jerk reaction, my comment was not directed at disagreeing with the ACLU's position, of which I am well aware because I clicked on the link and read it. My position is simply that the ACLU is attempting to assuage the fears (actual or perceived) that felons will now be released at alarming rates by pointing to the "facts" of the situation. However, while what they have said may in large part be true, it omits what I consider an important detail--that sentencing judges are obliged to follow the guidelines, and therefore that the vast majority of the defendants who would be affected by a retroactive change in the guidelines will indeed receive a sentence reduction.

I would also quibble with the phrase "an overly large benefit." I don't know if that's your phrase or the ACLU's phrase, but I have absolutely no idea how that phrase could be anchored in "fact."

Posted by: Steve | Dec 4, 2007 11:34:21 AM

Okay this is strange:

You say that the ACLU’s statement on the retroactivity of the guidelines omits the “fact” that the judges would be obligated to follow the guidelines? Setting aside the Booker issue (which I suspect will cut against many crack offenders), wouldn’t this be sort of obvious.

At the moment, it is unsettled whether or not re-sentencing judges would have to apply Booker or not on re-sentencing. If they DO, then they wouldn’t be completely bound to the guidelines, anyway. If they don’t, they, yes, of course, “Re-sentencing under the guidelines would be under the guidelines.” I fail to see what the ACLU left out.

Further, as a “factual” question a prediction about a future procedural device is hardly a “fact.” At best, it is a legal position.

In general, it is cute to call all sorts of things “facts.” But most “facts” are generally rhetorical flourishes on legal positions. For example, we can say that it is a “FACT” that X is unconstitutional even when it is a legal proposition. We can say that causal relationships are “facts” even though the law generally recognizes “proximate” causal relationships which are really a policy matter. Strangely enough even “facts” found by a jury are really just an assessment of how much doubt a jury might actually have.

Posted by: S.cotus | Dec 4, 2007 12:55:58 PM

I don't get what's wrong with this -- "the vast majority of the defendants who would be affected by a retroactive change in the guidelines will indeed receive a sentence reduction," even if it's true, which remains to be seen. So what? Is shortening people's sentence ipso facto wrong, even if fairness requires it and even if the ultimate sentence is no shorter than what they would get if they committed the crime today? Is shortening sentences so wrong that it requires some people to spend more time in jail for no better reason than the date on which they were convicted? What is Steve's rationale here? Is is any more than a knee-jerk "keep-'em-all-locked-up" mentality?

Posted by: David in NY | Dec 4, 2007 1:06:13 PM

S.cotus, point taken on the issue of Booker retroactivity, but my argument is merely that the ACLU's comments imply that a good number of criminals will not be released from prison early because judges might decide that they shouldn't be released. While I know this is theoretically possible, I also know that the reality of federal sentencing is that the guidelines are still in the driver's seat and it is much less risky for a judge to merely apply the guidelines than to impose a variance sentence. Accordingly, although the ACLU pays lip service to the fact that a judge will indeed have the final say, it ignores the reality of how sentencing works today.

David in NY, that's a nice straw man you've constructed, but I think you've missed my point altogether. I merely think Prof. Berman was being a bit generous in describing the ACLU as focusing on facts, when in reality they have put their own spin on the issue.

Posted by: Steve | Dec 4, 2007 1:44:53 PM

Steve, When professor Berman referred to “facts” he was referring to “reasonable predictions about legal resolution of problems in the future.” Sometimes we call these things “facts” to save time, but they are not “facts” in the way that lay people think that they know a “fact.”

At present, we don’t really know the extent to which sentences will be reduced. (The people whom the changes effect are generally not serving life sentences.) It may be a large number of convicts, but fairly modest reductions in individual sentences.

As to “how sentencing works today,” that is a work in progress. There are lots of open questions about how sentencing does and should work, which is the subject of this blog.

But, again, in looking at the ACLU’s statements, they seem to say something fairly obvious:
1) convicts may move to be re-sentenced;
2) they will be re-sentenced under the guidelines;
3) the sentencing will be by a judge.

Their argument is very modest. What more do you want? Did you want a prediction on whether Booker is retroactive to these re-opened sentences? (They are not touching that issue.) Did you want them to say, “Circuits differ as to the manner in which, post-Booker, Guidelines sentences should be imposed?” Did you want them to say, “We said the guidelines apply. We really really really really really meant that the guidelines really apply”?

It seems that you are really taking issue with the ACLU’s emphasis on the fact that re-sentencing under the guidelines will be a JUDGE. You would have rather the ACLU’s counsel said re-sentencing under the GUIDELINES will be by a judge. Whatever the case, there is something for everyone in there: The guidelines will provide a path to a sentence for a judge, and a judge will make sure that there is no gave injustices carried out.

Posted by: S.cotus | Dec 4, 2007 3:36:51 PM

I can not understand how a man who has a crack addiction be sentenced to 15 yrs just because he has an addiction and not history of violence but because he has a past federal conviction over 17 yrs ago which he did time for fits into the career criminal guidelines and is not allowed a downward departue.

Posted by: | Jan 12, 2008 5:15:13 PM

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