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March 19, 2010

Questions about the "when" and "now what" for crack/powder sentencing reform

Though there is still much to say about the virtues and vices of this week's compromise bill passed by the Senate to cut the quantity ratio of powder to crack triggering statutory mandatory minimums to roughly 18:1 (basics here and here), I have lately been thinking about when this compromise bill will be considered by the House and about now what happens to crack sentences while the legislative debate (and subsequent guideline revisions) develop.  Specifically, here are some of the questions kicking around my head, many of which are inspired by the fact that, on average, more than 100 crack sentences are imposed every week in federal courts:

1.  Could and will the House take up this issue as soon as the pending health care vote takes place or will we have to wait lots of weeks and months for the House to act?

2.  Will the US Sentencing Commission be able to pass new crack guidelines within the 90 day specified in the Senate bill?  In other words, could we possible have all new crack guidelines in place before Independence Day?

3.  Are defendants now facing crack sentencing all moving for postponements in the hope of taking advantage of the (likely?) new lower guidelines that could be law by the second half of 2010?

4.  Can defendants now make new and stronger arguments that any and all sentence imposed pursuant to the old crack guidelines are unreasonable because the Senate has unanimouslydeclared, in essence, that those old guidelines are too severe and unfair?

I would be grateful to hear comments that are specifically directed to any of these practical issues or related when and now what questions in the wake of this week's Senate action.

Some related recent posts:

March 19, 2010 at 10:25 AM | Permalink


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In response to questions 3 and 4:

The package passed by the Senate mandates several specific offense characteristic enhancements. If a defendant gets a base offense level reduction, but then is subject to one or more of the new enhancements, then this amendment is a net loss for the Defendant (i.e. higher Guideline range). Thus, I would be very cautious about automatically concluding this change to be a good thing for Defendants.

Some judges, moreover, have already decided that a 1:1 or 5:1 ratio is appropriate, and even for judges who haven't done so, the reason for a variance under the current ratio is very strong. Once the legislative change to 18:1 becomes law, it will be become, I believe, much more difficult to get any judge to reject that still-unduly-harsh scheme.

For all these reasons, I would not postpone a crack sentencing unless you first calculating both the current and the projected "new" range and comparing them. And I would not postpone a crack sentencing if a judge has alreay adopted a lower (more just) ratio. Further, if the new amendments result in a net loss for a particular Defendant, then any argument that the old crack guideline was unreasonable will have little weight.

Personally, I hope the House rejects the measure. The new enhancements (applicable in ALL drug cases) are not needed. And even so, they are only justified if the ratio is 1:1. Otherwise, I fear this bill could be a net loss for a lot of defendants, and it still results in unduly harsh guideline ranges more often than not.

Posted by: DEJ | Mar 19, 2010 2:43:09 PM

I can tell you that I am continuing my crack cases where the amounts are near the tipping point, the ones at the plea stage and at the sentencing stage. I'm hoping the bill gives us leverage in plea negotiations.

Posted by: Joy | Mar 19, 2010 4:07:00 PM

Joy, in the cases you are continuing, would the client now be subject to one or more of the new specific offense characteristics? Would you otherwise be able to get a ratio lower than 18:1 from the judge? If "no" to both questions, then continue away. If "yes," a continuance may not be in the best interest.

Posted by: DEJ | Mar 19, 2010 4:29:54 PM

The elephant in the room is still (the lack of) retroactivity.

Posted by: Ferris Bueller | Mar 22, 2010 8:31:14 AM

Ferris - Retroactivity just isn't a serious option when you have a change that includes components that could both benefit, and hurt, a particular defendant (as DEJ points out). The ex post facto issues would be too big a mess. This is why the last crack amendment was made retroactive, but this one isn't.

Posted by: law123 | Mar 22, 2010 4:07:57 PM

hi im a college student and i feel as the crack law is too harsh especially if a person has never been involved in drugs to get such harsh sentencing. i'm upset because my brother who was never involvd with ant drugs in his life got 15 years. thats just too much. are they planning on going back and redoing cases that was just sentence this year im very concerned.

Posted by: meshondra murray | Mar 30, 2010 11:41:42 PM

My question is also concerning those already convicted. Exactly how will the changes effect them or will it at all? My son got a 19 year sentence and has already served 1 yr. His TEA date is listed 2015.

Posted by: mrsbrown, lpn | May 27, 2010 11:26:25 PM


Posted by: PEPSIE BILAL-FREEMAN | Jul 29, 2010 2:36:03 AM

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