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February 8, 2008

Federal Defenders memo about DOJ position on crack retroactivity

I just got a copy of an interesting little memo from the Sentencing Resource Counsel of the Federal Public and Community Defenders, which clearly was written to respond to concerns within the defense bar as a result of the recent testimony of AG Mukasey urging Congress to block the retroactive implementation of the new crack guidelines.  Here is how the memo (which can be downloaded below) starts and ends:

Many of you have expressed concern over the Attorney General’s public declaration of the Department of Justice’s intention to propose new legislation to repeal the crack retroactivity decisions of Congress and the Sentencing Commission. The Attorney General’s proposed legislation would eliminate an available mechanism for a sentence reduction based on the Sentencing Commission’s careful findings that guideline ranges for crack defendants are greater than necessary to accomplish the goals of sentencing and have a racially disparate impact. Congress approved the Commission’s partial remedy for these urgent and compelling problems, and for the same reasons, the Sentencing Commission unanimously found that retroactivity is appropriate.

We believe that Congress is most unlikely to pass any such legislation for a variety of reasons....

While we do not believe that Congress will fall for the Department's announced intent to push legislation that would undo overdue and partial relief for some prisoners who suffer unfair sentences for crack offenses, we are prepared to mount constitutional challenges in the event that our optimism is not warranted. A legal memorandum on these issues has been prepared and is available upon request should the need arise.

Download memo_to_defenders_re_doj_proposal.doc

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February 8, 2008 at 04:52 PM | Permalink


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Mr. Berman, we addressed another very series component to the DOJ's position at this link:
As you may recall, many of the NE Ohio Corr. Inst. prisoners are potentially confused as to the scope of the crack amendment or possibly have been substantially discouraged from seeking relief.

Posted by: Ronald Humphreys | Feb 8, 2008 6:05:37 PM

The Defenders' suggestion that prisoners now have a legal entitlement to a not-yet-effective sentence reduction, so that stripping them of their ability to file a future motion for that reduction is a Bill of Attainder or an Ex Post Facto violation is, in a word, silly.

Does that mean that if the President signs a bill into law with an effective date 3 months hence, the Constitution prohibits Congress from changing its mind?

Posted by: Da Man | Feb 9, 2008 1:26:59 PM

As silly as the claim that the DOJ cannot prosecute U.S. citizens for torturing prisoners, DA man? Because that seemed not only silly, but deadly.

Posted by: Alec | Feb 11, 2008 1:17:36 AM

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