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May 25, 2011

Bipartisan call for making new crack guidelines retroactive (without fear of "blood on the streets" or a "grim roster of victims")

I am pleased to see that in this new commentary at the website Main Justice, Asa Hutchinson and Laura Murphy are making a bipartisan pitch for retroactive application of the lowered federal sentencing guidelines implemented in response to the passage of the Fair Sentencing Act. The piece is titled simply "Fairer Sentencing: Sentencing guidelines for crack cocaine offenses should be applied retroactively," and here a few notable paragraphs:

The U.S. Sentencing Commission will soon consider whether to apply the new crack guidelines retroactively so that fairness will apply both to future offenders and to those who were sentenced under the old law. With those of the political left and right rarely agree on matters of policy, the fact that we -- a representative of the ACLU and a former federal prosecutor -- can both support this change by the Sentencing Commission demonstrates vividly the logic and fairness of the change....

The Justice Department should continue to provide the moral leadership it has to date on crack sentencing fairness by urging the U.S. Sentencing Commission today (and Congress tomorrow) to apply the new, fairer crack penalties retroactively.

As the title to my post here is meant to highlight, it is all too easy to imagine a much different type of commentary on this sentencing issue which draws on the kind of rhetoric in the Plata dissents and in some commentary since the Supreme Court's affirmance of the prisoner release order in this case.

Applying the new crack guidelines retroactively would likely lead to the early release of thousands (perhaps even tens of thousands) of federal prisoners convicted of serious crack offenses.  Thus, were one eager to trump exaggerated public safety fears over sentencing fairness, one could readily assert that the result of applying new guidelines retroactively will bring "blood on the streets" and a "grim roster of victims."  Fortunately, we have not (yet?) seen too much of this rhetoric in the context of crack sentencing, and it is really a shame that this rhetoric has been used so readily in response to the Plata ruling.

UPDATE:  In related news, this new press releaseexplains that "A group of seven prominent national civil rights organizations that includes The Leadership Conference on Civil and Human Rights sent a letter to the U.S. Attorney General Eric Holder urging him to support the retroactive application of a new set of sentencing guidelines that accompany the implementation of the Fair Sentencing Act (FSA), which reduced the discriminatory sentencing disparity between crack cocaine and powder cocaine offenses."  The letter is available at this link.

In addition, the US Sentencing Commission now has posted this notice and this agendaconcerning the public hearing to be held next Wednesday, June 1, 2011, in DC which is "for the Commission to gather testimony from invited witnesses regarding retroactivity of Amendment 2, pertaining to federal drug offenses."  The agenda lists 18 individuals to be testifying on retroactivity from various perspectives, and I will boldly predict that at least 15 of those persons scheduled to testify will be urging some form of retroactivity for some of the new lowered crack guidelines.

May 25, 2011 at 10:50 AM | Permalink


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Bill and Federalist what are thoughts on applying this retroactively and causing the streets to go back to the way they were in the 80's....

My view is it should be retroactive and the streets won't get out of control...It still has to go before a judge, just like the 2 level drop did...But, if its mandated and the guidelines are no longer mandatory, a judge can reject it or give a partial drop....Think this will happen... I think it will in some cases, where the defendants have a terrible prison record and its obvious that they are too troubled to be yet released... Your thoughts...

Posted by: Josh | May 25, 2011 1:48:17 PM

Also, we shouldn't have nearly the problems now because from what I've read much of the violence in the late 80s was due to emerging criminal markets. Those should be fairly stable by now and thus need much less violence to keep them orderly. (Note I am not saying violence free, merely significantly less violence than was seen during the crack boom years).

Posted by: Soronel Haetir | May 25, 2011 2:10:38 PM

"continue to provide the moral leadership it has to date on crack sentencing fairness"

There is a lack of "moral leadership" when the DOJ unnecessarily and steadfastly refuses to apply the new, more just, 18:1 ratio in all pending crack sentences.

Posted by: DEJ | May 25, 2011 2:15:41 PM

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