« Nicholas Kristof urging that we "End the War on Pot" | Main | Interesting and notable federal clemency developments on two fronts »

October 28, 2010

Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?

There are lots of notable and important aspects to the thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act's altered mandatory minimums apply to such a defendant as well."  But in this post I want to spotlight and wonder aloud about a footnote from the opinion noting DOJ's current advocacy position on this important and consequential issue.

Specifically, after explaining that the government in Douglas was urging that the old crack mandatory minimums apply to "to all future prosecutions and sentencings based on pre-August 3, 2010, conduct," Judge Hornby drops this footnote:

At oral argument, I did inquire of the Assistant United States Attorney whether his argument was a matter of individual U.S. Attorney Office discretion or the position of the Department of Justice, and he replied that he understood it to be the policy of the Department of Justice.

I am very pleased that Judge Hornby asked this important question, and now very curious why President Obama's Department of Justice has adopted the advocacy policy that the unfair and now reformed old crack sentencing statute should and must be applied for as long as possible to as many defendants as possible.  For a number of reasons, this policy/advocacy seems deeply misguided and troublesome:

First, as I sought to explained in this amicus letter I submitted in a pending case in NYC, I think a fair reading of congressional intent and statutory construction principles call for the FSA to apply to pending cases as soon as possible.

Second, given that there are debatable statutory claims here and that every defendant in every district court with a sentencing pending will press for immediate application of the FSA, the DOJ's current position ensures extensive, costly federal litigation for many months and will likely ensure disparate sentencing outcomes in different parts of the country for many years. If DOJ is really interested in consistent sentencing practices and outcomes, it could and should simply embrace the policy of having the FSA now apply to all not-yet-sentenced defendants.

Third, way back in April 2009, the official advocacy policy of the DOJ was to call upon Congress to "completely eliminate[] the sentencing disparity between crack and powder cocaine" (testimony here). Disappointingly, Congress only partially reduced the disparity; but, now even more disappointingly, DOJ now seems to want the old unjust 100-1 ratio to apply for a long as possible to as many defendants as possible.

I can imagine various reasons why federal prosecutors have adopted its worrisome position in these FSA pipeline case.  But because DOJ is supposed to be a Department of Justice, not merely a Department of making the best arguments for federal prosecutors, I am hopeful that DOJ might before long consider changing course.

October 28, 2010 at 09:36 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?:


I really value this blog, yet I have to say that the quote from the AUSA doesn't ring with a certainty that it is Central office's policy (although this post takes the AUSA's ambiguous answer as solid proof) . . The AUSA's answer also conflicts with anecdotal evidence to the contrary in other jurisdictions . . .

Posted by: nan | Oct 28, 2010 10:00:30 AM

The Executive Branch is obligated to apply the law as passed by Congress. The President may disagree with a policy on the one hand (e.g. DADT) but yet fulfill his obligation to defend it in court on the other. There is nothing unusual about that. The Savings Statute is a law. I think DOJ is just trying to apply it (recognizing that you disagree with the DOJ's interpretation of the law).

Posted by: Law | Oct 28, 2010 10:15:38 AM

Law (above) has it right. In order to avoid taking conflicting positions depending on the party or ideology in power, the Department's long-standing tradition is to advance any reasonable argument in favor of its INSTITUTIONAL interests -- in this instance, deferring the operation of a lenity-driven statute until the time Congress intended.

There are arguments that Congress intended it to become operational now, and the distict court in one instance agreed. But other courts have thought otherwise, meaning that the Department's argment, even if erroneous (which in my opinion it is not, given the Savings Statute of which Congress was certainly aware) is plainly reasonable. It is therefore fitting for the Department to advance it.

Posted by: Bill Otis | Oct 28, 2010 11:20:18 AM

Helpful comments, all, but somewhat in tension. I agree with nan that there is some uncertainty as to whether this is firm DOJ policy or just a "suggestion" coming from main Justice. Whatever the truth, DOJ can/should be faulted for not making clear for all to know/see, now a full 3 months AFTER the FSA's enactment, what its policy is.

Meanwhile, Law and Bill suggest that this is DOJ policy and that this policy serves DOJ's institutional interests and/or is a reasonable effort by DOJ to apply applicable law. However, applicable SENTENCING law also provides, via 18 USC 3553(a), that sentences should seek to be "sufficient, but not greater than necessary, to ... provide just punishment for the offense" and "to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." My read of both the passage of the FSA AND DOJ's own policy positions is that these SENTENCING laws are better served by giving effect to the FSA as soon as possible.

To be clear, I am not asserting that DOJ's position --- assuming it is actually DOJ's position, which remains unclear as nan notes --- is unreasonable. Rather, I am asserting that it seems to me to be "deeply misguided and troublesome" in light of both the obvious goals of the FSA and also so much other SENTENCING law put in place by Congress. Point 2 above is the critical aspect of my assertion in this regard -- i.e., DOJ's current position ensures extensive, costly federal litigation for many months and will likely ensure disparate sentencing outcomes in different parts of the country for many years. I feel confident that Congress was not eager to have lots of federal lawyers spending lots of federal taxpayer dollars litigating in the hope of extending the application of a law Congress has now amended, especially given the inevitability that this litigation will surely result in very different sentences in different parts of the country (and maybe in the same courthouse) depending on the debatable legal conclusions of different judges.

To sharpen this point, Law and Bill, let me pose this question: Do you think Congress intended when the FSA was passed for a lot of federal taxpayer money to be spent trying to extend the application of old crack law? Other than the general savings clause, what evidence do you have to support this view of congressional intent?

Posted by: Doug B. | Oct 28, 2010 11:41:42 AM

I think Congress intended that federal taxpayer dollars would be spent on defense lawyers bringing all reasonable claims on behalf of their clients (after all, that's what the right to counsel means) and on federal prosecutors arguing to uphold federal law (that's what Executive Branch employees do; for some authority on this, see Title 28, United States Code, Chapter 31). I know this seems like a simplistic posture to you. Frankly, though, your analysis is one only a law professor could love; for it leads nowhere. If you want to focus on congressional intent, answer me this: if Congress wanted to reduce federal expenditures by making the FSA apply retroactively, in light of the Savings Statute and the Supreme Court's interpretation of it, why didn't Congress say so? We shouldn't get lost in debates over congressional intent when a statute exists that under the interpretations of the Court addresses the matter. The courts of appeals that have looked at the issue to date have spoken and agree with this approach.

Posted by: Law | Oct 28, 2010 12:15:27 PM

Doug --

A few points.

First, the long-term interests of an institutional litigant, particularly one, like DOJ, charged with law enforcement, demand its fidelity to the tradition of advocating for status quo sentencing unless that argument is unreasonable. This one isn't. To my way of thinking, the long-standing tradition serves essential interests of non-partisanship more compelling than the equities, or perceived equities, of any individual dispute.

Second, the logic of your argument would take DOJ to places it couldn't possibly go. You argue, for example:

"DOJ's current position ensures extensive, costly federal litigation for many months and will likely ensure disparate sentencing outcomes in different parts of the country for many years. If DOJ is really interested in consistent sentencing practices and outcomes, it could and should simply embrace the policy of having the FSA now apply to all not-yet-sentenced defendants."

I see two problems. First, DOJ could ALWAYS avoid sentencing challenges, and their attendant substantial costs, by surrender. But a professional advocate does not surrender when he has a reasonable (and, in my view, probably a winning) argument in his quiver. But even if surrender were a viable option, it would lead to the second problem, to wit, that you can never surrender enough. Once DOJ caves on the grounds you advance, it will be involved in MORE litigation, not less, as every crack defendant for the last quarter century demands a re-opening of his sentence based on exactly the 3553(a) staturory and equitable arguments you advance.

Wildly varying sentencing outcomes for crack were guaranteed, not by DOJ, but by the Supreme Court's outcomes in Booker and Kimbrough. Such outcomes are a fait accompli until and unless that changes. Both DOJ and the taxpayers will have to live with that fact. As you know better than most, I think it's very unfortunate, but it's the way of the world at this point.

Posted by: Bill Otis | Oct 28, 2010 12:46:35 PM

Your question answers itself. Stated another way, it's "Why is the Obama Administration, after promising X, doing the opposite of X ?"

It's how they roll, on torture prosecutions, DADT, the public option, no closed door negotiations with industry, etc. Count me as not surprised that the pattern continues in sentencing policy. With anything this administration does, the key lesson is to believe your eyes, not your ears.

Posted by: David | Oct 28, 2010 1:02:48 PM

Law, if congress said "the FSA should apply retroactively" it would have made life more complicated because the questions then arise as to whether they meant (1) to all crack defendants ever sentenced under 100-1 since 1986, (2) to all crack defendants sentenced under the 100-1 man min since 1986, (3) to all in categories 1 or 2 still with viable initial 2255 claims, (4) to all persons in categories 1 or 2 still on direct appeal, and/or just (5) to all persons not yet initially sentenced. The CIRCUITS have only spoken formally to already sentenced defendants in category 4, and I (along with District Judge Hornby) am focused only for now on defendants in category 5.

Obviously, Congress in the FSA did not expressly speak to ANY of these issues. You are inclined to say that, due to congressional silence, crack defendants in all categories should therefore lose. I am saying that, with respect to defendants in category 5, the issue is not at all clear cut based merely on silence. Indeed, as Judge Hornby says, there are good reasons to infer this silence to mean the defendants in category 5 should get the benefit of the FSA. And the point of my post is to question what benefit and/or vision of justice drives the DOJ position that the defendants in category 5 should NOT get the benefit of the FSA.

Bill: I think you are WORNG what you call "surrender" --- and what Congress calls "fair sentencing" --- for those in category 5 necessarily means that we will get more litigation from the other folks in other categories. Even more critically, the fact that Law so readily conflates these issues is why I think it so important for DOJ to be out in front developing a principled (and I thinking congressionally suggested) distinction! Plus, Mr. red herring, you know that right now we are ONLY talking about the application of mandatory minimums to pipeline, not Kimbrough discretion (which already applies to pipeline cases and which the mandatories serve to aggravate).

Posted by: Doug B. | Oct 28, 2010 1:27:53 PM

Is it possible that the DOJ is simply applying its normal statutory interpretation models to the new law. Here is my thought: the administration got part of what it wanted (in the reduction of the disparity) on this issue. However, the DOJ is tasked with applying the whole law. If they treat this statute retroactively, despite a clear mandate from congress to do so, it would leave them open to attack if it treated other statutes differently. The easiest argument is consistency within the framework, even if the policies come out looking inconsistent.

Posted by: Ala JD | Oct 28, 2010 2:37:08 PM

Oops: should be "despite a lack of clear mandate from congress."

Posted by: Ala JD | Oct 28, 2010 2:38:16 PM

actually it's pretty simple! Politicians lie ALL THE TIME! How can you tell. Their MOUTHS are MOVING!

Posted by: rodsmith | Oct 28, 2010 2:51:04 PM

Doug --

I wouldn't miss a day without being a red herring. Nonetheless, the reason it's not all that red, or all that much of a herring for that matter, is that the boatload of inevitably helter-skelter crack sentencings after Booker/Kimbrough blunts the force of your argument that, without the DOJ concession you seek, there will be unfair disparity in pipeline, post-FSA sentences.

There is ALREADY unfair disparity in crack sentencing ACROSS THE BOARD, promoted by the effective end of the law of sentencing almost six years ago. For all that time, judges could, for almost any practical purpose, sentence crack however they wish. Kimbrough said specifically that they needn't be bound by Congress's crack policy, and since Kimbrough is still the law, they needn't be bound by Congress's FSA now. If a lenient judge THIS AFTERNOON wants to give a sentence the FSA would dictate, he can do it and, under Kimbrough, no one can stop him. Likewise, if a tough judge wants to disregard the FSA EVEN IN THE FUTURE WHEN IT BECOMES EFFECTIVE, he can do that too. Kimbrough says what it says.

In addition, as I was saying, if DOJ goes your way on this one, it might as well hang a big KICK ME sign on its backside, because crack defendants from literally decades ago will adapt the equity arguments upon which DOJ will perforce rely to demand re-sentencing no matter how old the case.

Posted by: Bill Otis | Oct 28, 2010 3:04:54 PM


I think you are overlooking the fact that the FSA impacts mandatory minimums. So a lenient judge who wants to be lenient now is still bound by the old mandatory minumums if the FSA does not apply to pipeline cases. That, I think, is the unfairness Doug is talking about.

Posted by: FPD | Oct 28, 2010 5:02:54 PM

FPD --

You might well have a point regarding MM's; they were not what I had in mind, since the bulk of crack sentences are not MM's but Guidelines driven (and therefore the bulk of my response to Doug remains correct). But thank you for the reminder.

Posted by: Bill Otis | Oct 28, 2010 6:44:54 PM

Bill, you say the MMs were not of central concern to you, but isn't MMs exactly what Prof. Berman was talking about? In his reply to you, he says "we are ONLY talking about the application of mandatory minimums to pipeline, not Kimbrough discretion." What did you not understand about that?

Concerning "retroactivity" of the FSA, the only real question in this post is whether the new MMs apply to cases not yet sentenced. As pointed out in Judge Hornby's opinion, everyone agrees that, as long as the range is not now higher, the new crack Guideline will apply to all sentences after Nov. 1, regardless of when the conduct occurred. Again, the issue is whether the new MMs would still apply.

Posted by: DEJ | Oct 28, 2010 8:53:48 PM

DEJ --

Doug is free to disregard Kimbrough discretion as the focus of his discussion. I am equally free to consider it. I have and I will continue to, since to discuss crack sentencing -- and particularly its irrational variation -- without considering Kimbrough's titanic impact on it, stem to stern, is to look at only a sliver of the picture.

I have been upbraided here when, in response to an entry about the EU attitude toward the death penalty, I point to the attitude in the rest of the world. That too is said to be off-topic to the specific entry. I guess it is, but I decline to be so confined because it's nonsensical and presents an artifically limited portrait. Ditto here.

Posted by: Bill Otis | Oct 28, 2010 9:16:35 PM

Here are the 2009 stats on crack sentencings and MMs
19.7% of cases had no mandatory minimum
32.7% had a 5 year mandatory minimum
47.7% had a 10 year mandatory minimum
Source: USSC, 2009 Sourcebook of Federal Sentencing Statistics, Table 43.

So, for the vast majority of defendants (4566 crack defendants in 2009), Kimbrough did not allow a judge to sentence "however they wish."

Posted by: Denise | Nov 1, 2010 9:11:19 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB