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May 29, 2009

"Cocaine Cases in Limbo as End Looms for Sentencing Disparity"

The title of this post is the title of this interesting article in today's New Jersey Law Journal. Here are excerpts:

The Obama administration's call for the elimination of mandatory jail terms for certain crack-cocaine offenders is beginning to filter down to U.S. Attorneys' Offices, but not fast enough for defense lawyers.

The administration announced in April that it favors reform of a 20-year-old law that mandates a sentence of at least five years for possession of 500 grams of powder cocaine with intent to distribute and the same penalty for five grams of crack cocaine.... Bills to end the disparity have been introduced in Congress and [Assistant Attorney General Lanny] Breuer told the legislators that the administration also will develop recommendations....

Some defense lawyers say the Justice Department doesn't need to wait for legislation to end the disparity.  Yet it is impossible to tell from the Justice Department's guidance to U.S. attorneys whether anything has changed in the trenches.  And while the government figures out what it wants to do, a request for adjournments of sentencings may be one of the defense strategies....

The chief issue is what the Justice Department had in mind when it sent guidance to U.S. attorneys after Breuer's April 29 testimony, at a Senate judiciary subcommittee hearing, calling for an end to the disparity.  Justice Department spokesman Ross Weingarten declines to discuss what the department told U.S. attorneys beyond saying the instructions were in keeping with Breuer's testimony.  And there isn't much meat in the version that U.S. Attorneys' Offices are circulating to defense counsel either in memo form or in conversation....

Michael Nachmanoff, the federal public defender in Alexandria, Va., who testified before Congress last year on behalf of his colleagues around the country, says prosecutors can put the policy into effect, particularly in its charges in cases involving 50 or more grams of crack. Conviction with that amount requires a 10-year minimum sentence, the same as for more than 5,000 grams of powder cocaine. "Lanny Breuer said point blank that the ratio should be 1-to-1," Nachmanoff says. "Prosecutors around the country today could start charging on a 1-1 ratio and avoid the mandatory minimums."

Cases in the pipeline would be more difficult, but when it comes time to sentence those offenders, prosecutors could seek to vacate the conviction with the idea of following with an information charging possession of lesser amount that don't trigger the mandatory sentences, he says. "Unfortunately, there is a gap between the expression of a changed policy on the part of the assistant attorney general and what is happening in the field," he says.

He says that in talking to defense lawyers around the country, "what we see is there is a huge amount of variation in the way prosecutors are handling these cases, even within a district to district." "In some parts of the country, prosecutors are telling a judge the 1-1 ratio is the way to go, but it sounds like prosecutors in New Jersey or other states maybe aren't saying that clearly or acting that way," Nachmanoff says.

In the meantime, defense lawyers are attaching copies of Breuer's testimony to their sentencing pleadings "and telling judges, 'this is the position of the Justice Department, whatever the people in the field are saying,' " Nachmanoff says.

Some related recent posts on crack sentencing debates:  

May 29, 2009 at 12:40 PM | Permalink


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In the SDNY, I am informed that US Attorneys will be actively asking the judge to use a 1:1 ratio for purposes of 3553, but not addressing guidelines calculations or mandatory minimum applicability.

Posted by: NYC Lawyer | May 29, 2009 1:14:23 PM

If there is a 10-year minimum mandatory for X amount of crack cocaine, and the US does not make a 5K1.1 motion, neither Booker, nor hopes of a 1:1 ratio will permit a sentence below 10 years --except in the case of a defendant who meets the safety valve. It only takes a small amount of crack to make the 10-year minimum mandatory penalty stick. So, making a guideline amendment for 1:1 ration (power/crack) has almost no impact if the statutory minimum mandatory schemes remain the same. Now, if Congress would amend 18 USC 3582(c)(2) to permit a sentence below a minimum mandatory --like a sentence that comports with Booker or is otherwise justified by compelling 3553(a) factors, then why even have the minimum mandatory? We might as well just hand the judges total discretion and fire up the abuse of discretion standard for direct appeal when needed. Too many variables and everyone has a hand in the cookie jar.

Posted by: Ron | Jun 1, 2009 12:32:45 PM

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