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February 18, 2008

Examining realities of crack sentencing reform

USSC Commissioner John Steer and attorney Mark Allenbaugh have this new Findlaw piece, titled "The State of Federal Cocaine Sentencing Policy: Will Congress Soon Finish What the U.S. Sentencing Commission Started?".  Here is how it ends:

[T]he Justice Department is rightly concerned about public safety, and a greater emphasis on re-entry programs is welcome.  Congress, therefore, should carefully monitor developments.

The Sentencing Reform Act of 1984 envisioned a very limited, well-regulated remedial process in which judges make their sentence reduction decisions within parameters set by the Sentencing Commission. In the wake of U.S. Supreme Court decisions granting greater judicial sentencing discretion, there may be a tendency for some to exceed intended boundaries in these special, limited-purpose retroactivity proceedings. If that becomes a significant problem, Congress should determine if remedial legislation is warranted.

Finally, Congress also needs to fully understand that a more complete, just resolution of the entire crack/powder excessive disparity issue is now squarely in its hands and urgently needs prompt legislative action.  As Commission Chairman Judge Ricardo Hinojosa recently testified before the Senate Judiciary Committee, "[t]he Commission believes that there is no justification for the current statutory penalty scheme for powder and crack cocaine offenses," and "the Commission is of the opinion that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties and therefore must be legislated by Congress."

February 18, 2008 at 10:04 AM | Permalink


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Regrettably, Doug, the way you report this piece makes it sound as if it gives credence to DOJ's bogus and self-serving "concerns" about public safety. Here's what the article says:

Regrettably, opponents of this change have misrepresented the retroactivity process and exaggerated public safety concerns - concerns that can and should be appropriately addressed by the courts as offenders' petitions for sentence reductions come before them. In particular, the Attorney General recently testified before Congress asking it to reverse the Commission's action, contending that releasing crack offenders early will increase violent crime in some communities and will clog up the courts with additional litigation.

Importantly such reductions are not automatic, but will be granted or denied by judges on a case-by-case basis. Thus, while the number of possibly eligible offenders--approximately 20,000--may be unprecedented, there is no good reason why Congress should stop this process from going forward.

Why Congress Should Accept the Commission's Retroactive Amendment

Rather than accepting Attorney General Mukasey's unwarranted assertions, Congress ought to carefully examine the relevant facts on the matter, including the series of reports that have been issued by the Commission over the years. The Commission, after all, is the "expert agency" Congress itself created to address and advise Congress on federal sentencing policy. Specifically, with respect to the retroactivity issue, fundamental principles of equitable justice argue strongly that similarly-situated, previously-sentenced crack offenders should also have a chance to prove their fitness for a comparable reduction.

Posted by: abe | Feb 18, 2008 12:44:50 PM

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