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December 19, 2022

Looking back and looking forward on federal crack sentencing after new AG Garland memos

As noted in this post, US Attorney General Merrick Garland issued new federal charging guidelines this past Friday.  There are lots of thinkgs to say about a lot of the particulars of these guidelines (including why they took so long to be produced), although the bulk of the media coverage has been about the AG Garland's specific instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."   That intruction alone justifies lots of discussion, but I will start with one "looking back" matter and one "looking forward" matter:

1.  Shouldn't past crack sentences merit "equivalent treatment" via compassionate release?   This US Sentencing Commission data analysis from January 2022 suggests that there may be 8,000 or more current federal prisonsers serving crack sentences that are much longer than they would have received if they had receicved "equivalent treatment" to powder offenders at their initial sentencing.  Though it may be claimed that not all current crack prisoners may be able to demonstrate "extraordinary and compelling reasons" for a sentence reduction under ยง 3582(c)(1)(A), certainly some of them are likely to be able to do so.  Presumably, federal prosecutors can and will now be fully supportive of efforts by crack prisoners to seek such reductions to at least the powder sentencing equivalent whenever there are any other bases to claim that "extraordinary and compelling reasons" support a sentence reduction.  Moreover, as I see it, the historic problems and injustices of crack sentencing is alone an "extraordinary and compelling reasons" support a sentence reduction.  I doubt federal prosecutors will agree with this assertion, but federal courts could certainly make such a finding and I would hope DOJ would not appeal such a finding if some district courts so rule.

2.  Isn't future congressional crack sentencing reform tougher now?  Literally hours before seeing the new AG charging guidelines, I blogged news reports that Congress was closing in on a deal to lower crack sentences so as to reduce (but not elimited) the statutory crack/powder disparity.  Thoughthe AG issuing discretionary charging guidelines ought not directly impact how legislators think about statutory reform, everything that happens inside the Beltway can echo through all the work other others inside the Beltway.  And, discouragingly, I have now seen this new report, headlined "U.S. Senate Talks on Cocaine Sentencing Reform Hit Roadblock," suggesting crack sentencing reform is not likely to get done:

Negotiations in the U.S. Senate to narrow sentencing disparities between crack and powder cocaine have stalled, two sources said on Monday, in what could prove a blow for criminal justice reform advocates....  [I]n the last three days, negotiations to tuck the measure into the year-end spending bill, considered key for its passage, have largely ground to a halt, the sources said.

A Friday decision by Attorney General Merrick Garland to instruct federal prosecutors to end disparities in the way they charge offenses involving crack and powder upset some Republican legislators, who accused the Justice Department of usurping congressional authority.  Separately, bipartisan negotiators have encountered unexpected opposition from top Senate Republican Mitch McConnell, one of the people said.

"A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill," Senator Chuck Grassley, the top Republican senator on the Judiciary Committee, said in a Friday statement.  "That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands."

Perhaps AG Garland already knew that Senator McConnell was going to block crack sentencing reform before issuing his bold charging guidelines. But, if there was still a realistic chance at crack sentencing reform that AG Garland disrupted simply by not waiting a few more days to issue these (long-overdue) guidelines, then this was an epic blunder in timing.

UPDATE This new Politico article about the omnibus bill to be passsed by Congress indicates that crack sentencing reform is not included AND that AG Garland's charging memo is the reasona why:

A bipartisan deal to narrow the sentencing disparities between crack and powder cocaine was also booted from the bill after Attorney General Merrick Garland instructed federal prosecutors last week to eliminate the sentencing disparities, sparking frustration from Sen. Chuck Grassley (R-Iowa), who accused him of blowing up the Senate deal.

December 19, 2022 at 04:03 PM | Permalink


This blog seems to have lost a lot of commenters (is that a word?).

Posted by: federalist | Dec 19, 2022 4:31:16 PM

I wonder why Garland weighed in when he did - maybe he thought the department's new charging instructions would work to sway those on the hill - I think this may have backfired...

On a side note - the fact that they can't all agree to the 1:1 to me is still mind boggling...and apparently not retroactive...

Posted by: atomicfrog | Dec 20, 2022 7:04:52 AM


" Presumably, federal prosecutors can and will now be fully supportive of efforts by crack prisoners to seek such reductions to at least the powder sentencing equivalent whenever there are any other bases to claim that "extraordinary and compelling reasons" support a sentence reduction."

This would be very lovely, but I think is wildly unrealistic in practice. They are going to oppose the vast majority of these. You cannot even seek a sentence reduction in the 11th based on stuff like this (as you know, see Thomas Bryant).

The line AUSAs fought hard on almost every single Section 404 reduction under the First Step Act.

Why would it be different today?

Posted by: Zachary Newland | Dec 20, 2022 10:23:58 AM

Zachary: This could possibly play out somewhat differently because this is formal guidance from Main Justice to all USAs/AUSAs. I think many federal prosecutors --- perhaps even including AG Garland --- do not generally like to support general efforts to have sentences reduced "after the fact" unless and until the law makes it extremely clear that such reductiona are required/encouraged. But, because this is specific guidance from the AG for a specific class of cases, perhaps opposition to reductions will not be a matter of course.

That said, I am really explaining why I hope the feds might this time around prove to be more supportive of more reductions. As you note, past history and other factors suggest we ought not expect that.

Posted by: Doug B. | Dec 20, 2022 4:24:39 PM

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