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August 1, 2020

Noticing problems with crack sentence reduction retroactivity, especially when certain judges are discretionarily disinclined

The New York Times has this effective new article highlighting the ugly underbelly of the FRIST STEP Act's efforts to make sure the Fair Sentencing Act's reduction of crack sentences was fully retroactive.  The headline and subheadline of the piece serves as a summary: "Law to Reduce Crack Cocaine Sentences Leaves Some Imprisoned: Critics say the First Step Act is being applied too arbitrarily by judges who are taking a hard line when it comes to revisiting nonviolent drug sentences."  Here are excerpts from a piece worth reading in full:

By and large, the First Step Act has met its goal of reducing federal sentences for nonviolent drug offenders, addressing a longstanding disparity in which crack cocaine convictions in particular led to far harsher penalties than other drug offenses and disproportionately increased imprisonment of Black men.

Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively.  As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible.

But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release.  “It’s like the luck of the draw,” said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases.  “You’ve got people sitting in prison during a pandemic, and it’s not supposed to come down to who your judge is.  It’s supposed to come down to the law.”

The simple enactment of the bill was no guarantee for inmates.  This provision of the bill did not mandate that the judges must resentence eligible offenders; Congress specified that “nothing in this section shall be construed to require a court to reduce any sentence.”...

The section of the act that governs resentencing for crack cocaine convictions is just four sentences long.  It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine.  Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision.

Many public defenders — who handle most of these applications — in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a “godsend” for many inmates.  He added that judges varied as to the importance they placed on the original offense or the inmate’s behavior behind bars.  “You give it to different judges, they’re going to come up with different opinions,” Mr. Small said.  “It’s frustrating.”

August 1, 2020 at 03:04 PM | Permalink


I have four of these pro bono cases out of ED Ky. In one, the judge first denied FSA relief sua sponte, before a motion was even filed. I won in the 6th, and the judge denied again, this time before the mandate from the 6th Circuit had even issued, without noting the change in guidelines or the fact that he was departing upwards; he just reviewed the criminal history and stated "I see no reason to change my mind." First Step has helped many worthy people, but the unevenness of application shows why there still needs to be a role for principled and thoughtful clemency.

Posted by: Mark Osler | Aug 1, 2020 6:14:11 PM

Mark Osler: Was the case you describe handled by Judge Danny Reeves in the E.D. Ky.?

Posted by: James J. Gormley | Aug 1, 2020 11:33:04 PM

It's very inconsistent even within the same district depending on the judge. Sometimes it looks like a painful lottery. Mark, it does make the case for clemency, but I don't know if it even has to be principled or thoughtful because the sentences were not principled or thoughtful. I hope for clemency that is generous, merciful and compassionate and granted.

Posted by: Beth Curtis | Aug 2, 2020 12:58:54 AM

James-- No, it was not. And Beth, you are kinda right-- to my mind, mercy and compassion are principles (and in too short supply).

Posted by: Mark Osler | Aug 7, 2020 5:02:49 PM

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