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March 20, 2008

Important report from NC about (not) implementing new crack guidelines

This Charlotte Observer story, headlined "N.C. slow to cut crack sentences," provides a fascinating account of the challenges in implementing the new retroactive crack sentencing guidelines.  Here are snippets from a must-read (with key points for commentary in bold):

Federal judges across the country have released hundreds of crack cocaine inmates or reduced their sentences under new guidelines that took effect this month.  But in North Carolina, the courts have shortened sentences for just three people, public defenders say. 

At least 14 other inmates prosecuted in the Charlotte region qualify for immediate release but remain incarcerated, according to Claire Rauscher, public defender for Western North Carolina. More prisoners statewide may be in the same situation, according to officials who are examining records to determine who is eligible....

Court officials say they are working as quickly as possible through caseloads among the largest in the nation. They said they would resolve more cases in coming weeks. "This is a new law and the first couple of weeks always take the longest," said Frank Johns, clerk of the U.S. District Court for Western North Carolina, which covers Charlotte....

Prisoners in other states have moved faster through the courts.  As of Friday, the federal government said it had received about 1,900 court orders reducing prisoners' sentences.

At least 400 court orders were received the week of March 3, the day the new guidelines took effect, said Michael Nachmanoff, public defender for the U.S. District Court for Eastern Virginia.  Nachmanoff said at least seven offenders from his district were immediately released from prison March 3 because the courts started working on the cases in February.  "There are many districts that have had success," Nachmanoff said. "Unfortunately, North Carolina is behind the curve."...

Of the 14 remaining Western North Carolina cases where public defenders have pending requests for an inmate's immediate release, almost all have been delayed because the U.S. Attorney's Office has failed to file paperwork, said Rauscher, the public defender.... Rauscher said most of the inmates eligible for immediate release are nonviolent offenders.  They live in halfway houses. "I'm very frustrated," she said....

A spokeswoman for Western North Carolina U.S. Attorney Gretchen Shappert declined to comment.  Shappert has been an outspoken critic of the sentence reductions, testifying to the Sentencing Commission last year that it would put dangerous criminals back on the streets. Shappert testified that their release would harm law enforcement successes that help make neighborhoods in Charlotte and elsewhere less violent.  "Crack dealing is not a victimless crime," she said. "It holds entire communities hostage."

Though I am not one to quickly throw around serious accusations, this press report suggests a kind of "prosecutorial nullification" might be keeping some NC defendants in federal prison longer than justice demands.  As the article explains, the US Attorney in this key NC district is personally against allowing any crack defendants getting reduced sentences.  She certainly can and perhaps eventually will make these arguments to the federal judges considering defendants' motions for reduced sentences.  But rather than make her arguments in each case and letting a judge decide (as the law now requires), it appears the US Attorney in this key NC district may be indirectly blocking the consideration of these motions for reduced sentences by failing to file needed paperwork.

I hope anyone directly involved with or knowledgeable about what is going on in the Western District of NC might report on whether my concerns about "prosecutorial nullification" are founded.  Of course, a recent case around Duke reminds us that some prosecutors in North Carolina can be motivated by concerns other than true justice.  I hope the facts of what's going on in this new setting does not prove to be another case of an NC prosecutor gone wild.

March 20, 2008 at 09:17 AM | Permalink


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This is a pretty scathing indictment of the US Attorney. However, all, in all, it isn’t up to her, and if her office doesn’t answer the objections, they will simply be ruled on without her, and she will be waiving her right to object, anyway. (If I recall correctly, in that District, there was a general order issued which set fourth a procedure for handling such motions.) So, I would say it is more a form of incompetence.

Posted by: S.cotus | Mar 20, 2008 9:53:48 AM

Prosecutors have limited resources--thus things are prioritized, and this is not a priority.

Posted by: federalist | Mar 20, 2008 10:25:58 AM

federalist, you clearly are not practicing criminal law and so you apeak from . . . what? Certainly not from experience. As the article stated, and as my experience has shown, in other districts, things are rolling along smoothly whereas in NC the U.S. attorney is purposefully neglecting to file paperwork in a timely manner. Try letting facts, rather than ideology, inform your thoughts.

Posted by: AC | Mar 20, 2008 10:32:22 AM

Federalist, Because you have admitted that you are not a lawyer, I will have to take this slow.

Actually, it would seem like it would be a priority, because they are risking waiving issues. Even though I (and the USSC) found her testimony to simply not be credible, it would seem that simply doing nothing means that she will be conceding that everyone theoretically eligible for early release is so entitled.

As a practical matter, I have *never* seen a prosecutor choose to allocate resources to simply waive all issues on a similar type of motion. AUSAs will make open decisions not to contest thing, but the government pretty much makes sure its voice is heard in every motion (even when it wouldn’t be strategically wise.) So, to me, this appears strange. (Even stranger still is the fact that in other Districts the AUSA, the Chief Judge, and the FPD have agreed upon a general format to follow in expediting decisions on these motions – complete with contact people and tight deadlines.)

But, let’s go down your road for a second. You are arguing that the lowest priority of a prosecutor is having their voice heard on whether someone’s facially meritorious motion for release should be granted? You are also arguing that the lowest priority of a prosecutor is to ensuring that someone entitled to be released is released? Wow!

Posted by: S.cotus | Mar 20, 2008 10:38:50 AM

Though I am not one to quickly throw around serious accusations

No, of course not. But hard evidence like (1) a public defender accusing a prosecutor of foot-dragging and (2) the fact that a prosecutor has testified against the law she's being asked to apply.... well, who can argue with that? I'm surprised that Ms. Schappert hasn't been called a racist yet.

Posted by: | Mar 20, 2008 10:42:09 AM

Well, S.cotus, apparently what she's doing, if her intent is to delay, is working--it may bite her later, but it's working now, isn't it? And I am not arguing anything--just saying what her excuse could be.

You guys all need to lighten up.

Posted by: federalist | Mar 20, 2008 10:53:00 AM

PD's in general have less resources that prosecutors, yet they're able to find the time to represent their clients.

The people of this jursidiciton are not getting good representation from the AG.

Posted by: hmmmm.... | Mar 20, 2008 12:08:31 PM

Do prosecutors have an affirmative obligation to file paperwork in a timely manner?

If prosecutors do not file paperwork in a timely manner, what are the obligations of the judge?

I ask because during the first months of the LaCrosse case, one had the impression that the judge was acting to protect the prosecutor.

Posted by: William Jockusch | Mar 20, 2008 12:28:28 PM

This isn’t an AG, this is the US Attorney. Whether US Attorneys really are supposed to “represent” people in their district is a gray area. A convincing arguing can be made that they are not. They are nominated by the president and confirmed by Congress. Only by gentleman’s agreement and understandings do the local politicians (as opposed to the voters) have a say in this decision, and in recent years the Bush administration has resisted input from even Republic politicians on this selection.

Whatever the case, this really is not that burdensome a task. Most of the work is already done for them. Most (if not all) other Districts are actively participating in this process.

Posted by: S.cotus | Mar 20, 2008 12:32:13 PM

Mr. Jockusch, Most “obligations” to file paperwork are enforced by simply a waiver of any right to object. Some judges believe that they can “make” a party file objections, but as a practical matter there is no way to make someone respond thoughtfully.

Some courts have imposed obligations on the US Attorney to file some cover sheets and some information, but usually those are attached to various other actions by the prosecutor (e.g. If you want X, you must also do Y.)

What is galling about this other US Attorneys have reached an arrangement with the Chief Judge, and the PD, wherein motions (pro se or otherwise) could be handled on an expedited basis if a prisoner asserts he is entitled to immediate release. For example, in Puerto Rico, this administrative order was issued. http://tinyurl.com/289fdx . It is rather obviously the product of a collaborative process, because 1) the PD agrees that he can represent people (if even on a temporary basis); 2) on p. 8 of the order, the AUSA appears to have specified contact people that will handle these motions; 3) the FPD designated contact people as well. Both the FPD and the US Attorney agreed that they could be served via email. The probation office was directed to prepare, on an expedited basis, a “retroactivity package” and a pro forma schedule for argument (and most likely stipulated decisions) was specified.

Posted by: S.cotus | Mar 20, 2008 12:44:49 PM

I'm a criminal-defense attorney, and this is a strange "shoe on the other foot" situation. In death-penalty cases, no one ever sticks the defendant to deadlines. It must drive the prosecutors nuts. Now, the criminal defendant desires prompt action by their opponent, and one prosecutor drags her feet. And it's certainly driving the defense bar in N.C. nuts.

If the courts proposed "no extensions for anyone" would there be any takers?

Posted by: Mark | Mar 20, 2008 1:41:07 PM

"Galling"? Ha! Sounds to me like she's playing hardball. She doesn't want to cooperate, and she has other priorities . . . . and it offends S.cotus' precious lawyer sensibilities.

Seems to me that your argument is that the US Attorney is being a big meanie and that it's just not fair. Cite some authority that what she's doing is illegal . . . .

Posted by: federalist | Mar 20, 2008 2:05:39 PM

So then you affirm the assumption that there is nothing wrong with incarcerating people who shouldn't otherwise be there? I'm stunned you're willing to have your hard earned tax dollars support this individual's unnecessary stay in a federal institution.

Posted by: Christopher | Mar 20, 2008 2:40:24 PM

I take no position one way or another.

As for the tax dollars, well, criminals cause a lot of harm in society, so I'm not sure that releasing them on time is a net net benefit to the public fisc.

Posted by: federalist | Mar 20, 2008 2:47:23 PM

Mark - it doesn't sound from the article that the USA in WDNC is requesting extensions for anything, her office is simply not filing pleadings. I'd assume that in the capital cases you're talking about defense counsel at least asks for extensions. Maybe the courts shouldn't give it to them, but that's a whole other kettle of fish.

In our district, the Government's been filing things on time without requesting more time, as has our office. Nobody can claim they didn't know this was coming, after all.

Posted by: JDB | Mar 20, 2008 2:58:29 PM

Sorry, meant to type USA.

Ideally, USAs represent the people of the United States in general and the people of that jurisdiction in particular. For example, DOJ may have a policy of USAs across the country look into child porn.A USA in New MExico may also focus on immigration matters and a USA in Kentucky may also focus on Meth. General and crudely drawn, I know.

Failure to file paperwork can lead to serious reprocussions, though I don't expect too many judges to go there.

Posted by: hmmmm.... | Mar 20, 2008 3:08:53 PM

Federalist, My point was simply that this US Attorney is acting in a way considerably different than every other US Attorney. Her position is that she will simply waive arguments rather than actually make them in court, in the hopes that by waiting for time limits to run people that otherwise have a right to be free will be in jail just a little while longer, because it makes her happy. Since her points were soundly rejected by the US Sentencing Commission, (sort of like when a jury doesn’t believe a defendant) it would seem that she is a tad bitter.

Whatever the case, Congress, the US Sentencing Commission and the Courts have made a decision about which criminal should be in jail and which shouldn’t.

The US Attorney is a political appointment made by the president (not the governor) and confirmed by Congress (not a state legislature). There is no requirement that the US Attorney even be from that state, even if that they have ever set foot in that state.

Hmmm.. Quite frankly, I don’t believe that a political appointment can represent two groups of people (in general, and in particular). There are different interests at stake. US Attorneys don’t even have the power to enforce local laws, and their salaries are not paid by the local government, anyway.

Posted by: S.cotus | Mar 20, 2008 3:51:54 PM

Cite some authority, S.cotus.

Posted by: federalist | Mar 20, 2008 3:53:35 PM

For what proposition?

Posted by: S.cotus | Mar 20, 2008 4:11:24 PM

That what this US Attorney is doing is illegal. Seems to me that she's just not rolling how you think she ought to be in the law world . . . .

By the way, I am a lawyer--apparently, you didn't get the sarcasm when I said that a non-lawyer cleaned your clock. And when you figure out selective incorporation and the Bill of Rights, let me know . . . .

Posted by: federalist | Mar 20, 2008 4:46:07 PM

I didn't say that she was doing anything illegal.

The rest of your post makes no sense.

Posted by: S.cotus | Mar 20, 2008 5:54:27 PM

Well, if it's not illegal, what's your beef?

Posted by: federalist | Mar 20, 2008 6:05:04 PM

Assuming there's nothing wrong with incarcerating someone in violation of the US Constitution as well as ignoring an act of the US Congress, then there's no beef. None at all.

Posted by: Christopher | Mar 20, 2008 6:33:38 PM

"Though I am not one to quickly throw around serious accusations . . . " "Of course, a recent case around Duke reminds us that some prosecutors in North Carolina can be motivated by concerns other than true justice." Professor, I'm really disappointed in you. It sure sounds like a thinly veiled accusation to me. And maybe the other lesson that could have been learned from the Duke lacrosse case is NOT to jump to conclusions based on self-serving statements of one interested party???????

Posted by: anonymous | Mar 20, 2008 10:37:32 PM

If I were a defense attorney in that jurisdiction, I would do the following:

1) File the motion for release.

2) When the government's time to respond has expired, file a motion asking the Court to grant the motion as uncontested.

3) If the Court fails to do so, file a motion for mandamus at CA4.

This obviously works better if the prisoner is a good candidate for immediate release. (Otherwise, the case for mandamus is much weaker.) In addition, if this is done in a bunch of cases, then CA4 will at least see that this is a purposeful obstruction (or gross dereliction) by the AUSA's office -- not an oversight with respect to just one case.

Posted by: dcuser | Mar 21, 2008 12:36:34 PM

Similar thing going on in VA

http://vlweekly.blogspot.com/2008/03/crack-prosecution-policy-criticized.html WDVA. Government loses on all counts, but it takes longer than necessary.

Posted by: S.cotus | Mar 23, 2008 5:30:37 PM

I would never use such a strong statement as Ms. Shappert being racist, however it is seeming to be leaning towards that direction. Personally I think she is being a bratty because she is embarrassed because she she lost against US Commission, and it is taking it out on those who are entitled to the reduction. She needs to admit she lost this one and move on to help and not hurt the ones who are suffering the most... The children of the absent mothers and fathers. They've made mistakes and most if not all deserve another chance. Plus the ones that haven't changed for the better will end up back in prison anyway!

Posted by: Dawn | Apr 9, 2008 10:01:25 PM

I have read all the blogs and am still very confused. So please bare with me. My first question is what Ms. Shappart doing illegal? How much time does she have to start the motion on realesing these inmates? If there is a dead line and she doesnt meet it what happens next? FOr the inmates that are incarcerated can a lawyer help them? Can a lawyer help spped up the process?

Posted by: Katherine | Apr 14, 2008 12:38:13 PM

I am one of those mother with an absent father in prison awaiting his possible reduction. I have had to care for my three kids alone for the past 9 years. I do agree he needed to be there for the time he has been there. He has changed his life now and realizes his mistakes. Why can't we speed the process along so that he can take care of his children, and begin a new life. Mrs.Shappart has always been a tough one and I don't think she will ever change. But have soon compasion. As stated before the ones who haven't changed will be back in prision.

Posted by: TONYA | May 16, 2008 3:31:13 PM

I am a student and I think that somethin should be done about this because rather there is a deadline or not she still has a obligation and a responsibilty to do her job. I also agree that it is appearing that she is either a racist or being very bratty we all will not and do not get or way all the time. I think she just needs to say you win some you lose some and do her job or be punished for not doing her job.

Posted by: | May 27, 2008 8:44:52 AM

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