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June 2, 2011

Informed criticisms of Justice Department's proposed limitation on crack retroactivity

I have received feedback from a a number of informed and thoughtful folks that there are real problems with the Justice Department's proposed limits on who should get the retroactive benefits of the new lower crack guidelines (basics here).  Margaret Colgate Love gave me permission to reprint her comments on this score here:

The Justice Department's proposal to categorically disqualify from relief individuals with a criminal history score higher than 3, and anyone in a lower criminal history category whose sentence was enhanced for gun possession, would weed out upwards of 60% of those otherwise eligible for early release.  It would also reduce the projected savings by as much as 70%, since those in higher criminal history categories would potentially qualify for a much larger reduction in their prison terms.  Many witnesses [at the USSC hearing on June 1] -- as well as several Commissioners -- pointed out that criminal history category or gun bump is an imperfect proxy for dangerousness or likely recidivism.  For example, the Commission's new recidivism study of the 2007 crack releasees shows that CH 4 has a lower recidivism rate than CH 3.  Also, it can be pretty easy to get into a high criminal history category with very minor priors, and guns are frequently attributed to defendants who never touched much less fired them.

The comparatively low recidivism rates of those released under the 2-level drop enacted in 2007 in every criminal history category indicates that the judges who made case-by-case decisions under that authority did a good job of weeding out individuals who were likely to be a danger upon release.  Almost everyone who testified [at the USSC hearing] thought judges could be relied upon to make these decisions again with the smaller cohort of individuals eligible for release under the new guidelines.  As if more were needed to discredit the Justice Department's recommendation, the Acting Director of BOP departed from his written testimony to remark on the management and public safety problems that might be created by disqualifying so many prisoners from a shot at early release when they have been working hard to earn it.

Recent related posts:

UPDATE Margaret Love also passed along for posting another informed observer's reflections on the USSC crack retroactivity hearing:

As you may have heard, Attorney General Holder was the first witness.  He stated that DOJ favors retroactivity with limitations.  DOJ would exclude those in Criminal History Categories IV, V and VI, and anyone with a weapon enhancement or a weapon conviction (e.g., 924(c)). (This would be well over half of the 12,000 or so inmates that the Commission believes to be eligible.)  After he left, the US Attorney for Northern Iowa elaborated on the Department’s position in her testimony.  The Commissioners grilled her on how these limitations (especially those based on criminal history) could be so important to public safety for those already sentenced when the Department did not request them prospectively. Her answers did not seem to satisfy the Commissioners.

She also was pressed hard on a broader recommendation to the Commission that it make retroactivity even more rare in the future given that judges can always vary to account for problems that the Commission later decides to fix.  This was not well received either, partly because the same logic should have led the Department to oppose retroactivity for the FSA amendments and partly because it would require the Commission to admit that it has become nearly irrelevant in the sentencing process.

It is always hard to predict based on questions at a hearing,... but I suspect that the Commission will rely on the favorable 2007 experience to make the current amendments retroactive without exclusions.  They also seemed to see a need to clarify the circumstances when it may not be appropriate to grant a reduction (i.e., the language it now has about the general inappropriateness of a reduction if the original sentence was a downward variance under 3553(a)).  The purpose there was to avoid a double dip in those cases where the judge already applied a ratio at least as favorable to the defendant as 18:1.  Because the person best situated to know whether that will be an issue is the sentencing judge, we asked the Commission to clarify the purpose so that judges can do their jobs.  I suspect that it will.

In addition, Michael O'Hear has still more observations on the hearing at his Life Sentences blog here and FAMM's twitter feed has even more on the hearing.

June 2, 2011 at 08:48 AM | Permalink


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Attorney Love's comments are well taken. The government's position to categorically limit retroactive application of the 2010 amendments to defendants who possessed weapons or with significant criminal histories disregards the fact a district court is not required to reduce a defendant's sentence under § 3582(c).
In deciding a motion for reduced sentence under § 3582(c)(2), a district court is directed to look to § 3553(a) factors in determining whether to reduce a sentence and the extent of the reduction within the amended guideline range. The government wishes to eliminate the court's discretion to make this determination based on factors that may or may not demonstrate a particular defendant is violent or likely to be a repeat offender. This seems to be contrary to § 3553(a)(2)'s mandate that courts should impose sentences that are no greater than necessary to achieve the goals of sentencing.

Posted by: Matthew Robinson | Jun 2, 2011 11:46:29 AM

Holder's exclusions are just the tip of the iceberg. Neither he nor the Sent Commission can "retroactively" change an act of Congress. So the mandatory-minimum terms that existed before FSA will remain in effect no matter what the Commission does in response to Holder's testimony. This means, of course, that the set of potential beneficiaries, to say nothing of the scope of their potential relief, is small indeed.

FPD in Denver

Posted by: John Carlson | Jun 2, 2011 12:08:09 PM

Does anyone know if even a single member of the Sentencing Commission asked AG Holder to explain how he can reconcile his positions that the Guidelines amended in response to the FSA be given retroactive effect, while simultaneously opposing application of the FSA itself to convicted defendants awaiting sentence?

Posted by: Gary G. Becker | Jun 2, 2011 2:18:18 PM

Professor O'Hear, who testified at the hearing, suggests Holder's approach may not see light.


Posted by: Matt | Jun 2, 2011 3:21:48 PM

If any decision is based on the adjudicated charge, it is based on fictitious garbage. One has absolutely no idea as to dangerousness or recidivism potential, since the adjudicated charge is fictitious in 95% of the cases, and based on a downward modification in a plea bargain.

All decisions should be based on the abandoned grand jury charge. Those should be maintained in the record to guide future decision makers.

Given the difficulty of getting into prison, one would tend to believe that only the most violent people are in there at all, and to support the Holder formula.

Posted by: Supremacy Claus | Jun 2, 2011 6:56:34 PM

I am curious to hear if I am the only one to note the fictitious nature of the adjudicated charge, and therefore its unacceptability as a basis for any decision? Or is decision making based on fiction acceptable to the lawyer/judge? Why is no one else on the Commission pointing that out?

Posted by: Supremacy Claus | Jun 2, 2011 7:06:14 PM

SC, the grand jury charges are often works of fiction. Defendents can not present evidence at the grand jury.

Posted by: anon2 | Jun 2, 2011 7:58:52 PM

SC, Federal is not at all like state charges...Its rare to plea down a charge, but some do get dismissed for substantial assistance......Some do get plea agreements, but the judge doesn't honor them with regular success either...

Rememeber the Ashcroft memorandum...Prosecute to the highest level charge, ensure guideline sentences....

Posted by: Josh | Jun 2, 2011 8:30:48 PM

Is there any difference between defendants who are awaiting trial/sentencing whose alleged crimes occurred pre-FSA and persons who have already been sentenced? Is the retroactivity proposed by Holder going to be applied at sentencing or will these persons be treated in a different manner?

Posted by: Jeff Wozniak | Jun 2, 2011 9:14:33 PM

Josh: Are you confident that all prisoners with adjudicated non-violent charges committed non-violent offenses, and that no serious violent offenses were dropped in the plea deal, at the federal level?

Posted by: Supremacy Claus | Jun 3, 2011 8:51:55 AM

In real life, is it ever possible to conduct a crack business without having a weapon close by? If it is not, the weapon possession exclusion appears pretextual, eliminating everyone from qualifying for the reduced sentence.

Posted by: Supremacy Claus | Jun 3, 2011 8:58:07 AM

Anon2: I understand how easy it is to get an indictment. However, the indictment required some evidence. It is not fictional.

I understand this would get state charges, but say, I broke into my girlfriend's house, stabbed her 50 times for some offense. She is too terrified to testify. The DA offers me the maximum for criminal trespass, a non-violent offense. Come time for release, I am among the first on the list when I should be among the last to be released. That adjudicated charge is fictional, but the best the prosecutor can do. Release is now based on a fiction, and a marked underestimate of my potential for violence.

Posted by: Supremacy Claus | Jun 3, 2011 9:04:18 AM

SC, some evidence is required but the government can say this belonged to Mr. X, when in fact it belonged to somebody else. I saw the transcripts of the government agents lying on the stand. Trust the government much?

Posted by: anon2 | Jun 3, 2011 11:27:40 AM

SC, I really don't know about violent offences. I do know a lot about some of those crimes that are non-violent. Perhaps the violent crimes get pled down as you say. I know that in non-violent crimes the government always wants to add on more charges. From Josh's post "Prosecute to the highest level charge..." Law enforcement knows that if trickery and deceit are used they will not be held accountable.

Posted by: anon2 | Jun 3, 2011 11:37:39 AM

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