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July 28, 2010

Questions and more questions as a reformed crack bill heads to the President's desk

As reported here, the House of Representatives, by voice vote, finally approved the compromise federal sentencing bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature.   Here is the text of the bill known as the Fair Sentencing Act of 2010 ("FSA"), and the folks at FAMM have this terrific resource page providing lots and lots of information about the bill and its potential impact.  But I still have lots and lots of questions as the bill head's to the President's desk:

1.  Will the US Sentencing Commission be able to make all the needed follow-up amendments no later within the 90 days reguired by the FSA?

2.  How many crack sentencings have been put on hold awaiting the expected passage of this bill and should they stay on hold while the USSC works on the emergency amendments?

3.  Will defendants who have already been sentenced for crack offenses find any ways to get any retroactive benefit from the FSA and/or the USSC amendments to follow?

4.  Does the passage of this bill (and also yesterday's House passage of the National Criminal Justice Commission Act) suggest we have finally hit a tipping point in the war on drugs and/or the tough on crime era?

I could go on and on, but I suspect readers may have some additional question to add to the mix.

July 28, 2010 at 03:01 PM | Permalink


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What about defendants who have pled but have not yet been sentenced? 1 USC s. 109 appears to say the answer is no. Am I right about that? I am a defense lawyer with the Federal Public Defender.

Posted by: Larry Allred | Jul 28, 2010 3:56:40 PM

Our experience in the SDNY today is a resolute position by the government that this legislation isn't retroactive so no deferring of pleas or extending of otherwise favorable plea offer deadlines will be entertained. The local prosecutors claim this is DOJ policy and they are sticking to their guns to force defendants in pending cases to enter pleas without further delay.

My advice is to try to negotiate a carve out of sorts for defendants who haven't pleaded yet. See if the government will agree that if DOJ policy changes in the coming months, before sentencing, the defendant would be allowed to withdraw the plea and then replead to the next offense level down. If DOJ policy doesn't change, it's no skin off the government's nose to agree to something it believes will never come to pass. On the other hand, if things do change, the defendant will benefit from including this in the plea agreement.

Posted by: Alex E. | Jul 28, 2010 5:10:17 PM

We have very few crack cocaine cases in my district. But if we had a case right now, i would suggest that a defendant who would be subject to a mandatory minimum under the old law, but not the new one, be allowed to plead to a violation invoking the non-mandatory provisions of 841(b)(1)(C), and then be subject to simply a guideline sentence based on the new ratio (putting aside for the moment any grounds for a variance, of course). Anything else would seem to be unfair.

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