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February 16, 2013

Missouri dealing with pipeline sentencing issues after state changes to crack law

Federal sentencing practioners are well aware of the multi-year legal debate over the application of the new crack sentencing rules in the Fair Sentencing Act to pending cases.  That legal debate culminated in the Supreme Court's Dorsey ruling last tear, and lower federal courts are still sorting through the consequences.  Now I see from this local article, headlined "Crack cocaine sentencing law at crossroads in St. Louis case," that the Missouri now has the same kind of issue percolating as a matter of state sentencing law. Here is how this lengthy piece get started:

Two grams of crack cocaine could cost Jackie Murphy a lot more time in prison than many other defendants with identical drug cases awaiting trial.  That’s because Murphy, of St. Louis, was charged before the Missouri legislature acted last summer to bring the penalties for possessing crack cocaine more in line with those for possessing powder cocaine.

St. Louis Circuit Attorney Jennifer Joyce’s office has taken the stance that the new legislation was not intended to apply to cases that were pending at the time — only to charges going forward.  That means that Murphy, if convicted, could face five to 15 years in prison for his alleged possession in January 2009 of two to eight grams of crack cocaine, under the Class B felony of trafficking.  Someone accused of the same conduct after August 2012 would face far less: one day to seven years for the lesser charge of possession, a Class C felony.

It’s a dichotomy that Murphy’s public defender, Richard Kroeger, is calling “utterly wrong” in a motion arguing for a dismissal of the charges.  He’s asking St. Louis Circuit Judge John Riley to follow the reasoning of the U.S. Supreme Court, which in June settled the same debate on the federal level.  It was about two Illinois men whose cases were charged but not yet adjudicated when the Fair Sentencing Act of 2010 was enacted.  The high court said the new law did apply to federal cases in the “pipeline.”

Joyce’s office opposes the motion, arguing that state law is clear and that the federal cases are a different matter.  The office declined to make anyone available this week to answer questions about it.  Riley is expected to issue a ruling as early as next week. 

Those who advocated for the legislation here are watching carefully, saying this could be the test case for how the new law is applied across the state. It was unclear how many pending cases might be affected, but lawyers said “a number” were on hold pending the outcome.

Under the old Missouri law, trafficking more than 150 grams but less than 450 grams of powder cocaine was treated the same as trafficking at least two grams but less than eight grams of crack.

According to a 2011 report from the Sentencing Project, a nonprofit advocate on criminal justice policies, Missouri’s 75-to-1 ratio for weight-based penalties on crack versus powder cocaine was the highest disparity in the nation.  It was adopted in 1989, according to the report, after a significant increase in cocaine-related deaths and at the tail end of a nationwide crack epidemic.  The old federal law had a 100-to-1 disparity.  Illinois, with no difference, was not mentioned in the report.

The Washington-based organization, and other advocates for equalizing crack and powder cocaine sentencing, argue that the old laws in Missouri and elsewhere are discriminatory because the heaviest penalties fell on minority and poor offenders, who have tended to choose crack.  And in the last decade or so, lawmakers have begun to agree. Missouri is one of five states, among 13 with disparities, that have since moved either to close the gap or eliminate it, according to the organization.

Nicole Porter, director of advocacy for the Sentencing Project, said she was not aware of any legislation that included provisions to be applied retroactively, or specified whether it would apply to pending cases.  Silence on the issue in the 2010 federal revision produced two years of uncertainty, until the U.S. Supreme Court issued its ruling in the consolidated cases of Dorsey v. United States and Hill v. United States.  Porter added that Murphy’s case was the first she’d heard of on the state level that asks the courts how the pipeline cases should be handled. “That litigation that is going on in Missouri is really new territory,” she said.

February 16, 2013 at 12:51 PM | Permalink


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Doug, I am currently litigating a pipeline issue in the habitual felon context. The Justice Reinvestment Act made large changes in NC's Habitual Felon Act. The law changed from enhancing everyone to a felony class C to employing a four level enhancement for habitual felon. Believe it or not, a prosecutor in an adjoining county told me she is not going to prosecute any pipeline habitual felon case under the old law because it would be fundamentally unfair.


Posted by: bruce cunningham | Feb 16, 2013 1:46:03 PM

Whether Statute X should apply to cases charged before the enactment of Statute X should depend on what Statute X says. So if we could get the text of this Missouri statute, that would be helpful.

If the statute is silent, you then go to whether the state has a general savings statute. If it does, defendant loses. If it doesn't, defendant wins.

Dorsey does not control because it was not a Constitutional decision. It was based on the federal statutory language, other federal law and rules, and Congressional intent. All those things could be (and are likely to be) different at the state level.

Posted by: Bill Otis | Feb 16, 2013 2:12:50 PM

Horse shit bill!

The law was changed becasue it was unfair to treat one one drug with a higher sentence than the other. It was unfair before it was passed; when it was passed; and after it was passed.

While i would not have a problem with leaving any finalzed case alone acept maybe give them an option to ask for a reduced sentence from the gov!

Those Not yet final should fall under the new rules.

Sorry can't have it both ways. We now have no problem charging people under the new current rules and punishment scheme especialy in sex crimes. Hell the courts are bending over into pritzel's to allow it! Some states are illegally rewriting their SOS just to allow old cases to be prosecuted under TODAYS' rules! Even though i think that is illegal and unconstutional! So kind of two faced to not do the same in cases like this!

Posted by: rodsmith | Feb 17, 2013 1:24:49 AM

LOL sorry SOS was to be SOL "statue of limitations"

Posted by: rodsmith | Feb 17, 2013 1:25:48 AM

Missouri has a specific statute on retroactivity -- Section 1.160. Before 2005, it presumed that changes to sentence length prior to the original sentencing were retroactive. Under the 2005 change it provides "the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended."

There is no special provision in the amendment to trafficking second indicating that a different rule is intended to apply.

Posted by: tmm | Feb 20, 2013 12:07:58 PM

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