WSJ notes dispute over application of FSA to pending cases

The Wall Street Journal has this new piece noting the on-going legal battles over applying the new crack  law to federal cases in the sentencing pipeline.  The piece is headlined "Crack Sentences Still Tough: Hard Time Given Even for Small Offenses Committed Before Rules Eased in August," and here are excerpts:

The Fair Sentencing Act passed this summer knocked down the requirement of long prison sentences for possession of crack cocaine, but a quirk in how the law was written has resulted in some defendants being sentenced under the old rules — and the situation could continue for years.

Lawmakers who backed the change, with the support of the attorney general and federal sentencing officials, aren't pleased with the outcome. They said the new guidelines rectified an injustice born during the drug wars of the 1980s. Instead, the snafu has created a parallel universe where defendants face different rules for the same crimes — sometimes in front of the same judge — because their offenses were committed at different times.

The cause of the problem: Congress didn't say whether the Act should apply to crimes committed before Aug. 3, when it was signed into law. Penalties for any repealed law remain in place for acts committed under that statute, unless lawmakers "expressly" establish otherwise, according to a federal statute....

But prosecutors and judges have always had some discretion in the crimes that are charged and sentences meted out. Congressional aides said the thinking of lawmakers who supported the law without a retroactive provision was that most prosecutors and judges would opt to follow the new, more lenient rules, even for acts committed before Aug. 3....

Nearly 5,700 defendants each year are sentenced for crack-cocaine crimes, according to data from the U.S. Sentencing Commission, the agency that sets sentencing guidelines for judges....

Lawmakers didn't address whether the law should be retroactive out of concern that a battle over this issue would scuttle the tenuous deal that was reached to pass it, congressional aides said. Opponents of making the law retroactive argued that doing so would lead to a flood of appeals from people already sentenced....

Most judges are issuing sentences under the old crack-cocaine law for crimes committed before Aug. 3. Earlier this month, Hartford, Conn., U.S. District Judge Christopher Droney sentenced a defendant to five years for possessing 14 grams of crack, after prosecutors argued that he had no alternative. Judge Droney said at the sentencing that he likely would have been more lenient if he had any leeway....

In Maine, U.S. District Judge D. Brock Hornby recently broke from the pattern, ruling in October that he would sentence William Douglas under the new law for an older crime. Mr. Douglas was convicted of possessing 113 grams of crack. Under the old rules he faced 10 years in prison.

In his ruling, Judge Hornby rejected the argument that the harsher law should be imposed, saying, "Congress stated its goal was to restore fairness to Federal cocaine sentencing. But what possible reason could there be to want judges to continue to impose sentences that are not fair over the next five years while the statute of limitations run?"

Prosecutors filed notice they planned to appeal.

Some recent related posts:

• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• Seeking ground reports on the FSA's application to not-yet-sentenced cases
• 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?
• Does Abbott provide new and added support for applying the FSA to pending cases?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Federal sentencing litigation at its absolute finest