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June 17, 2010

Percy Dillon's loss is sure to be other future defendants' gain

Though I feel bad for Percy Dillon and other defendants hoping to get an extra benefit from the US Sentencing Commission's lowered crack guidelines, Percy's loss in the Supreme Court today will likely prove to be a good thing for lots of other federal defendants.

As the USSC noted in its amicus brief in Dillon (which Justice Stevens rightly described as "subtle threat"), a ruling for Percy Dillon would have led the Commission to be VERY chary about making any future guideline reductions retroactive. But now that the USSC can clearly limit the extent of benefit previously sentenced defendants can get from new retroactive guidelines, the USSC need no longer fear the consequences of making new improved guidelines retroactive.

Especially if the Sentencing Commission sometime soon gets around to fixing some of the most troublesome and unduly severe aspects of the drug, fraud and child porn guidelines, lots of defendants now serving long prison terms under those guidelines probably should send Percy Dillon a thank you note if the USSC goes on to make some future fixes retroactive to other defendants' benefit.

June 17, 2010 at 11:39 AM | Permalink


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I guess I don't disagree with you, Doug, that as a descriptive matter, the USSC is more likely to make retroactive changes if those changes don't prompt a full post-Booker sentencing. But doesn't that speak really poorly of the USSC? Is it so naive to expect that the Commissioners might make rational and just changes to the Guidelines regardless of their "fear" of post-Booker sentencing? Do they really view current sentencing, and the exercise of judicial discretion (which frankly has been rather conservative and still Guideline-centric all things considered), as such an abomination that they would hestitate to do what they otherwise thought was the right thing to do? I can't help but find that really disturbing and would love your thoughts.

Posted by: David Patton | Jun 17, 2010 3:33:23 PM

Meanwhile, the meager 2007 Crack Amendments (described as only a beginning remedy) stand as the only thing the Commission deigned to offer to address the abhorrent racial disparity the Commission perpetuated to imprison scores of young, nonviolent black men. No wonder the Guidelines attribute no weight to remorse or efforts at restitution: the Commission obviously doesn't have any concern for mitigating its own errors, however much they may approximate genocide.

Posted by: nan | Jun 18, 2010 11:33:54 AM

My heart is aching. Percy Dillon III is a friend of mine & I just read about this today. He will do 23 yrs by the time he is done. The justice system is embarassing. Murderers & Child Molesters do less time. He did not hurt anyone & he paid his dues for this crime years ago. This is an outrage that his loss and 23yrs of his life will be someone else's gain. Only God knows but this is really devestating!

Posted by: Kerri | Sep 14, 2010 1:31:56 PM

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