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April 29, 2009

With the new DOJ advocating completely eliminating crack/powder disparity, now what?

Because the wheels of federal sentencing reform move slowly in Congress, the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) probably will take a while to become new sentencing legislation.  But the realities of federal sentencing decision-making move very quickly in the courtroom.  Specifically, in fiscal year 2008 there were over 6000 crack sentences imposed in federal court, which means that over 100 crack defendants are sentences each and every week in federal court and that perhaps 20 or more crack defendants are scheduled to be sentenced just later today.

What should now happen in these upcoming crack sentencing cases later today and tomorrow and next week and next month?  What should happen in on-going sentencing appeals in which a defendant is complaining to a circuit court that his within-guideline sentence is unreasonable?  What should happen to those cases involving defendants getting the retroactive benefit of the new crack guidelines, but have seeking an even greater reduction than the US Sentencing Commission authorized?  And, whatever federal judges can and think they can/should now do, what will federal prosecutors nationwide be recommending that judges do?

Exciting times... and uncertain times.  I guess this is the inevitability consequence of change we can believe in.

UPDATE:  Both Senators Durbin and Feinstein have been asking hard questions about how to apply new rules to old cases, and nobody has really good answers (and Senator Feinstein used the term "parole" in her question, perhaps because even she does not completely realize there is no such concept in current federal criminal law).  Of course, one possible "easy" answer might be to take care of this problem through executive clemency mechanism, rather than forcing courts to deal with these matters.

April 29, 2009 at 10:57 AM | Permalink


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Tracked on Apr 29, 2009 5:27:54 PM


You can change a ratio by changing the numerator, changing the denominator, or changing both. So saying they want to change the ratio from 100/1 to 1/1 still leaves a huge unanswered question. Have they said specifically what they want to do?

Posted by: Kent Scheidegger | Apr 29, 2009 4:22:04 PM

Why is 1:1 a categorical imperative?

Posted by: federalist | Apr 29, 2009 4:54:41 PM

The AAG in response to questions, Kent, said he saw no basis for thinking powder sentences should be raised to get to 1:1, though he also indicated that the internal DOJ group would be open to all suggestions.

And, federalist, I did not hear anyone calling 1:1 a "categorical imperative," just a sounder policy than the status quo.

Posted by: Doug B. | Apr 29, 2009 8:43:03 PM

Doug, the Justice Dept's view seems pretty much set in stone, which leads me to believe that Holder considers it a categorical imperative.

Posted by: federalist | Apr 30, 2009 11:34:03 AM

Kent has made a good point. Is there a rational process for deciding the threshold amount of a drug needed for there to be a presumption of drug trafficking? The threshold amounts in use now have too many unintended consequences.

I think the approach used in Portugal appears to be somewhat rational. They have a three person commission that decides if the accused is a drug dealer, user/dealer or user and the dealers are transferred to criminal court, the users to civil court and the user/dealers to either depending on the circumstances.

Posted by: John Neff | May 1, 2009 11:03:50 AM

I desperately need some help regarding the obscenely inordinate sentence of a young female first offender who has been incarcerated for over 17 years for a crack offense and has another 8 years to do. She was the girl friend of an alleged crack dealer. Her presentence report indicated that she should receive no more than 200 months, but the sentencing judge went outside of the sentencing guidelines and sentenced her to 360 months. Please, please, I need some desperate assistance with her case. This is outrageous. Please point me in the direction of a source that can help. A motion for correction of sentence in view of the new crack law was filed before the St. Louis sentencing judge over a year ago and he is taking no action on the motion, hence she is unable to appeal. Please help.

Posted by: Dexter Forbes | Nov 8, 2009 5:34:34 PM

I'm giving my life to the only son, who was and is and yet to come Let the praises ring, 'cause he is everything ?

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Posted by: חלקי חילוף לרכב בירושלים | Jan 3, 2011 8:33:02 AM

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