Sentencing Law and Policy

New year and new Congress brings a new effort to advance new EQUAL Act

Regular readers likely recall some of my posts over the last two years about the EQUAL Act, a bill to reform federal crack cocaine sentencing by finally treating crack and powder cocaine the same at sentencing.  In short form, passage of the bill looked somewhat likely when the US House of Representatives passed it overwhelmingly in September 2021; but, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden.  And, as detailed in this post, a lame-duck session compromise bill to the finish line.

Of course, the start of 2023 means a new Congress, so there needs to be a new version of the EQUAL Act introduced.  Interestingly, as this new FAMM press release highlights, there is already a "coalition of law enforcement, justice reform, and civil rights organizations urg[ing] Congress to pass the EQUAL Act" even before a new version has been formally introduced.  As the press release explains: "Today, FAMM along with 20 additional organizations sent a letter to Sens. Dick Durbin and Lindsey Graham (the Chair and Ranking Member of the Senate Judiciary Committee, respectively) urging them to schedule a markup for the EQUAL Act as soon as it is reintroduced this Congress."  Here are parts of the letter:

We write today to urge you to schedule a mark-up for the EQUAL Act as soon as it is reintroduced. We believe that moving the bill early this year will help prevent the same disappointing fate the bill suffered last Congress....

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Notably, but not surprisingly, this letter to Congress makes no mention of the fact that, as discussed here, US Attorney General Garland released last month new federal charging guidelines that including instructions to federal prosecutors to treat crack like powder cocaine at sentencing.  Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistance to reform as we saw late last year.  Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?  
• Hoping it is not yet time to give up on passage of the EQUAL Act 
• Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act 

SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors

There are many notable aspects to the Supreme Court's work this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here).  The votes alone could justify many posts, with Justices Thomas and Gorsuch joining an opinion broadly praising broad district court sentencing discretion (citing historical cases for good measure), and with all the other conservative justices embracing a fairly impractical (and unjust) statutory construction without considering any statutory canons. 

More generally, in keeping with my prior complaints about the oral arguments in this case, I was struck that none of the opinions in Concepcion mention sentencing purposes or justice or fairness even once in a case that concerns efforts by Congress to give full effect to the Fair Sentencing Act through the FIRST STEP Act.  The fundamental legal issue in Concepcion was whether a group of defendants (almost all of whom are persons of color) who have been serving, according to Congress, unjust and wrongful federal sentences for more than a dozen years should be limited in how they can now argue for more just and rightful sentences.  And, given that the defendant in the case had already served 15 years (of a 19-year sentence) for a conviction based on selling a tablespoon of crack, there are an array of rich legal and human stories here that justify further attention.

But, as the title of this post highlights, I am already thinking about what the Concepcion ruling means outside the crack context.  Specifically, I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.  Let me explain.

As most recently highlighted via this post about a First Circuit ruling in February, there is a deep circuit split about whether non-retroactive changes in sentencing law may constitute "extraordinary and compelling reasons" for compassionate release.  Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise.  And yet, this language from the Supreme Court's opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much....  Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

All this language about a court's broad discretion not only at initial sentencing but also when considering a sentence modification is directly relevant to federal judges' consideration of so-called compassionate release motions.  Concepcion makes plain, contrary to the problematic rulings of some circuits, that the "only limitation" on valid considerations are those in the Constitution or that Congress has expressly set forth.  And thus the Supreme Court's textualist ruling here ought to not only benefit Carlos Concepcion, but also every federal prisoner moving for compassionate release on any and all possible grounds not expressly excluded by Congress or the Constitution.

Prior related post:

• Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

In a 5-4 decision, with a somewhat surprising group of Justices in the majority, the Supreme Court this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), stressed the broad scope of information that may be consider at sentencing or sentence modification. Here is how Justice Sotomayor's opinion for the Court gets started:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U.S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U.S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U.S. 476, 492 (2011).  Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.

Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.

The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.

The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

Justice Kavanaugh authored the chief dissent for the Chief Justice, Justice Alito and Justice Barrett. It concludes this way:

The Court’s disregard of the text of the First Step Act is especially audacious because the Act was a heavily negotiated and vigorously debated piece of legislation. The Act reflects a compromise among competing interests. Not for the first time in a sentencing case, the Court’s decision today unravels the legislative compromise reflected in the statutory text. The Court in effect green-lights district courts, if they wish, to make the 2016 amendment to the career-offender guideline retroactive in First Step Act proceedings—even though neither Congress nor the Sentencing Commission has made that amendment retroactive. Perhaps the Court’s decision represents better sentencing policy. Perhaps not. But under the Constitution’s separation of powers, this Court may not simply rewrite the First Step Act as the Court thinks best.

In sum, I would conclude that the First Step Act authorizes district courts to reduce a sentence based on changes to the crack-cocaine sentencing ranges, but not based on other unrelated legal or factual changes since the original sentencing. The Court holds otherwise. Therefore, I respectfully dissent.

I will need some time to review these opinions closely before being able to discuss the broader meaning and impact. But, yet again, it turns out sentencing jurisprudence at the Supreme Court is more pro-defendant than in many lower courts.

Hoping it is not yet time to give up on passage of the EQUAL Act

When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might be finally about to come to an end.  In this post, I wondered "After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?."  Nearly nine months later, it is now obvious that the Senate was not able to move quickly on this issue.  But, I was still optimistic in March 2022 upon news that a full 10 GOP Senators were now signed on as co-sponsors of the EQUAL Act, and so I asked here "Is Congress finally on the verge of equalizing crack and powder cocaine sentences?."

But April brought showers dousing some of my hopefulness in the form of a group of GOP Senators introducing a competing crack/powder sentencing reform bill tougher than EQUAL Act and a press report that Democrats were fearful of potential floor votes around possible EQUAL Act amendments.  And yesterday, I saw that FAMM President Kevin Ring has this new commentary, headlined "The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction," while almost reads like a boxer's corner man throwing in the towel.  Here are excerpts:

When Lavonda Bonds, Yvonne Mosley, and Sagan Soto-Stanton saw the U.S. House overwhelmingly pass a bill last September to eliminate the federal sentencing disparity between crack and powder cocaine, they were excited and hopeful.  Their loved ones, who’ve each spent decades languishing in federal prison, could finally come home if the Senate would simply follow suit and pass this noncontroversial reform, known as the EQUAL Act.

Eight months later, these three women — and thousands of other families — are still waiting for the Senate to act.  They want to know what the holdup is.  They think I might know because I have been working in and around Congress for the past 30 years, first as a Capitol Hill staffer, then as a lobbyist, and for the past 13 years, as a D.C.-based advocate for families with loved ones in prison.

Unfortunately, I have to tell them all the same thing: The Senate is broken.  And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake....

Congress, which voted unanimously in 2010 to reduce the disparity to 18:1, looked poised to finally eliminate it this year.  A diverse coalition of groups from across the ideological spectrum, including organizations representing police and prosecutors, civil rights, and civil liberties, joined together to support the EQUAL Act to end the unwarranted disparity.

The U.S. House approved the EQUAL Act last September by a vote of 361–66. House Republican Leader Kevin McCarthy (R-Calif.), conservative Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Tex.), and nearly 70 percent of the Republican caucus joined every House Democrat in a powerful display of bipartisanship on a matter of equal justice.

As attention turned to the Senate, the bill’s supporters secured eleven Republican cosponsors (and more private commitments) to demonstrate that the EQUAL Act was bipartisan, popular, and would not fall victim to the filibuster, the Senate rule requiring 60 votes to cut off debate.  There’s no threat of filibuster preventing a vote for the EQUAL act, which could change the lives of thousands of suffering families.

So what’s the problem?  Senators may have to vote on amendments that get offered to the bill and they are scared.  They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis.  In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments.  But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber.  The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.  And if it doesn’t get fixed soon, the families of Lavonda, Yvonne, Sagan, and thousands of others will remain separated by prison bars for no reason.

I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be. One might especially recall that the FIRST STEP Act got to Prez Trump's desk during the lame-duck days after the 2018 election, so maybe that history foreshadows a 2022 path for the EQUAL Act.  But, whatever might come of this particular bill, I continue to be troubled to hear that the Senate cannot advance good policy because it seems a few of its members may fail to understand how to manage politics.  Sigh.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?  

With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?

The question in the title of this post is prompted by this New York Daily News article headlined "Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’."  Here are excerpts:

Senate Majority Leader Chuck Schumer on Monday called on lawmakers to end a sentencing disparity between crack and powder cocaine that has had a disproportionate effect on Black Americans. “We have a moment to balance the scales of justice,” the New York Democrat said at a news conference outside the Thurgood Marshall U.S. Courthouse in lower Manhattan. “It’s common sense: Cocaine is cocaine, and the sentencing should be equal.”

In September, the House overwhelmingly passed legislation to end a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. The bipartisan vote was 361 to 66. Democrats and Republicans embraced the chance to correct what activists, researchers and law enforcement view as a historical wrong. Pricey powder cocaine has long been seen as the province of the wealthy, while crack is cheaper and generally associated with poorer Americans....

But the bill, called the Eliminating a Quantifiably Unjust Application of the Law Act, has not yet landed on the floor of the Senate this spring, with both parties moving cautiously ahead of the pivotal midterm elections in November.

Schumer, who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor. In the Senate, Sens. Rob Portman (R-Ohio) and Cory Booker (D-N.J.) are sponsoring the legislation to end the sentencing disparities. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer told reporters Monday. “We want to get this done as soon as we can.”

Booker’s office said Monday that the legislation has picked up 21 cosponsors, including 11 Republicans, since it was introduced in the Senate in January. Booker said in a statement he was “pleased that Leader Schumer has called for a vote on the bill.” “For decades, our nation’s drug laws have been overly punitive and fraught with racial disparities, but perhaps no law has been as fundamentally flawed as the crack and powder cocaine sentencing disparity,” Booker said in the statement. “I look forward to passing the EQUAL Act as soon as possible.”

Beginning in 1986, mandatory minimum sentences for crack cocaine and powder cocaine crimes were formulated using a staggering 100-to-1 ratio. The Fair Sentencing Act of 2010, signed into law by President Barack Obama, changed the ratio to 18 to 1. “Some of our colleagues would say, ‘Well, I’ll lower it, but I won’t make it equal,’” said Schumer, who at one point held up sweetener packets as props during the news conference. “100 to 1 was horrible, but 18 to 1 was just as horrible, which it is now. 1 to 1 is fair.”

Senator Schumer is wrong to assert current crack sentencing after the Fair Sentencing Act is "just as horrible" as it was under the 100-1 ratio.  It is a bit better, but still not actually fair.  The EQUAL Act finally presents the prospect of getting to the 1-1 sentencing ratio that the US Sentencing Commission urged way back in 1995.  More than a quarter of a century later, I hope Senator Schumer is right about the fact that now is finally, finally "a moment to balance the scales of justice."

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

"When a Second Chance Gets a Second Chance: Reasonableness Review Reigns for Motions Under Section 404(b) of the First Step Act on Appeal"

The title of this post is the title of this new comment now available on SSRN authored by Patrick Riley. Here is its abstract: 

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine.  Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine.  In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1.  However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act.  Those already sentenced under the 100:1 ratio were left without any recourse until the First Step Act was passed in 2018.

Section 404(b) of the First Step Act applied the changes made by the Fair Sentencing Act retroactively to defendants imprisoned for crack cocaine offenses before the Fair Sentencing Act was passed in 2010.  Since the First Step Act was passed, federal courts have diverged in how they interpret their roles and responsibilities under section 404(b). One group of circuit courts interprets section 404(b) to provide limited discretion to the district court and, therefore, the appellate court need only review the district court’s decision under a deferential abuse-of-discretion standard.  The second group interprets section 404(b) to provide district courts with broad discretion to resentence defendants in a manner similar to an initial plenary sentencing, which appellate courts are required to review for reasonableness.

This Comment reaches the same result as the second group for two reasons: (1) This Comment applies the sentencing modification in 18 U.S.C. § 3582(c)(1)(B), rather than § 3582(c)(2), to section 404(b) of the First Step Act; and (2) this Comment interprets the text and purpose of section 404(b) as a sweeping remedy granting district courts broad discretion — like initial plenary sentencings — that must be reviewed for reasonableness.

Frustrating (but still fascinating) SCOTUS argument on crack offense resentencing under FIRST STEP Act

The Supreme Court heard oral argument today in Concepcion v. US, No. 20-1650, to address this technical question as presented by the Petitioners: "Whether, when deciding if it should 'impose a reduced sentence' on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments."  Perhaps in part because the federal government agrees that a district court "may" consider new facts at crack offense resentencing, it seems likely that the defendant here will secure some form of relief.  But, perhaps in part because of the federal government's position, a number of Justices seemed quite eager to talk up the virtues of limiting the scope of a crack offense resentencing.  And because everyone talked at great length about sentencing laws and practices — save Justices Barrett and Thomas, who were mostly quiet — all federal sentencing fans will want to make time to listen to (or read) the oral argument available here.

Many aspects of the argument were fascinating, included Justice Breyer's persistent eagerness to talk up the US Sentencing Commission and even USSC staff documents.  But I found the tenor and tone of the entire argument to be somewhat frustrating given the historical context of unjust crack sentencing.  The advocates and the Justices often suggested it was exceptional that Congress provided for crack resentencings, and the Assistant SG repeatedly spoke of the defendant's original "lawful sentence."  Nobody really mentioned at all the exceptionally unjust and unfair original 100-1 crack sentencing ratio and how that injustice was overwhelmingly acknowledged by Congress through the Fair Sentencing Act of 2010 and finally fixed retroactively  though the FIRST STEP Act of 2018.  Put more directly, Congress has twice made quite clear that it believes that crack defendants sentenced before 2010 received unjust and wrong sentences, even if those sentences may have been technically "lawful."  

In other words, what is fundamentally at issue in Concepcion is whether a group of defendants (almost all of whom are persons of color) who have been serving unjust and wrong federal sentences for more than a decade should be limited in how they can argue for now getting a more just and rightful sentence.  Most fundamentally, these crack defendants want to argue that they should also benefit at resentencing from other improvements in the guidelines apart from crack reforms.  But the Assistant AG expressed concern that allowing arguments for a more just and rightful sentence based on new guidelines could lead to an "unjustified windfall for a select subset of crack cocaine offenders."  But, as I see it, understanding how these defendants have been subject to unjust sentencing for many years, it is functionally impossible for them to really get any "windfall."  Indeed, allowing current new and improved law to inform a new and improved sentence for these crack defendants is the exact opposite of "unjustified windfall."  It is what all should recognize as justice, years late, but hopefully not short.

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

More than two dozen attorneys general urge Congress to extend crack retroactivity to offenders left behind by Terry

Back in June, as discussed here, the Supreme Court embraced a limiting interpretation in Terry v. US, No. 20–5904 (S. Ct. 2021), as to who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act.  As detailed in this press release from the Michigan Attorney General, this past week "a bipartisan coalition of 25 attorneys general [signed a letter] urging Congress to amend the First Step Act and extend critical resentencing reforms to individuals convicted of the lowest-level crack cocaine offenses."  The full letter is available at this link, and here are excerpts from the start and close of the letter:

As our jurisdictions’ Attorneys General, we are responsible for protecting the health, safety, and well-being of our residents. Although our jurisdictions vary in size, geography, and political composition, we are united in our commitment to an effective criminal justice system that safeguards the communities of our states. To that end, a bipartisan coalition of Attorneys General supported the passage of the First Step Act of 2018 — landmark legislation that brought common sense improvements to myriad aspects of the criminal justice system. Central to these reforms was retroactive relief for individuals sentenced under the discredited 100-to-1 crack-to-powder cocaine ratio that Congress abolished in 2010. Following the Supreme Court’s recent opinion in Terry v. United States, however, the lowest level crack cocaine offenders remain categorically ineligible for resentencing. We write today to urge Congress to amend the First Step Act, and to clarify that its retroactive relief applies to all individuals sentenced under the prior regime....

There is no reason why [lowest-level offenders] — and these individuals alone — should continue to serve sentences informed by the now-discredited crack-to-powder ratio. Discretionary relief is unambiguously available to serious dealers and kingpins sentenced under the prior regime; extending Section 404’s scope would simply allow individual users and other low-level crack cocaine offenders to have the same opportunity for a second chance. We therefore urge Congress to clarify that Section 404 of the First Step Act extends to all individuals convicted of crack cocaine offenses and sentenced under the 100-to-1 ratio—including the lowest level offenders.

Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack

While awaiting the start of this morning's US Senate Judiciary Committee hearing ,"Examining Federal Sentencing for Crack and Powder Cocaine," at which it seems there will be considerable advocacy for lowering crack cocaine sentences to finally be in parity with powder cocaine sentence (basics here), I thought to look through some of the archives of the Federal Sentencing Reporter to see how many articles have have had folks discussing (and often sharply criticizing) crack sentences. 

Because crack sentencing rules have been subject to so much justified criticism and seen modest reform in recent years, the number of FSR articles on this topic feels more than a bit overwhelming.  Here is an abridged list of articles that caught my eye to show the varied list of authors and laments through the years:

From 1990 by Deborah Young, "Rethinking the Commission's Drug Guidelines: Courier Cases Where Quantity Overstates Culpability" 

From 1992 by Catharine M. Goodwin, "Sentencing Narcotics Cases Where Drug Amount Is a Poor Indicator of Relative Culpability"

From 1992 by Robert S. Mueller, "Mandatory Minimum Sentencing"

From 1993 by Ronald F. Wright, "Drug Sentences as a Reform Priority"

From 1993 by Richard Berk, "Preliminary Data on Race and Crack Charging Practices in Los Angeles"

From 1994 by Marc Miller and Daniel J. Freed, "The Disproportionate Imprisonment of Low-Level Drug Offenders"

From 1995 by David Yellen, "Reforming Cocaine Sentencing: The New Commission Speaks"

From 1998 by Carol A. Bergman, "The Politics of Federal Sentencing on Cocaine"

From 1999 by Kyle O'Dowd, "The Need to Re-Assess Quantity-Based Drug Sentences"

From 2001 by Paula Kautt, "Differential Usage of Guideline Standards by Defendant Race and Gender in Federal Drug Sentences: Fact or Fiction?"

From 2003 by Alfred Blumstein, "The Notorious 100:1 Crack: Powder Disparity--The Data Tell Us that It Is Time to Restore the Balance"

From 2005 by Ryan S. King and Marc Mauer, "Sentencing with Discretion: Crack Cocaine Sentencing After Booker"

From 2007 by Steven L. Chanenson and Douglas A. Berman, "Federal Cocaine Sentencing in Transition"

From 2007 by Mark Osler, "More than Numbers: A Proposal For Rational Drug Sentences"

I will stop with these links to these 15 FSR articles because I am already overwhelmed and there were dozens more articles I could have highlighted just from the period before recentfederal  crack sentencing reforms. Notably, in 2007, the US Sentencing Commission finally did a first round of (modest) crack guideline reductions, then in 2010 we got the Fair Sentencing Act and it echoed through another round of guideline reductions.  And yet, as witnesses are noting in today's Senate hearing, we still have a disparate and unjustified disparity in our cocaine sentencing laws.  Moreover, as many of the articles above highlight, our enduring commitment to a quantity-based federal drug sentencing structure is a deep problem at the root of our so many of our federal sentencing woes.

Noting how carceral craziness and foolhardy finality fixations result in cases like Tarahrick Terry's

As highlighted in this post following this past week's SCOTUS oral argument, the questions from the Justices strongly suggest that the Supreme Court will soon rule that Tarahrick Terry is not entitled to seek a resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  Over at SCOTUSblog, Ekow Yankah has this effective review of the Terry argument which spotlights a portion I found especially notable toward the end:

One dissonant note came late in the morning, when Justice Brett Kavanaugh embarked on an extended exchange with Mortara.  Rather than a sharp set of questions, Kavanaugh ruminated on, among other things, the history that led to the sentencing regime Congress sought to fix.  He recalled the 1986 death of college-basketball star Len Bias from a cocaine overdose that shocked the nation and brought cocaine use squarely into the spotlight.  Recalling that Bias was only a year older than him and that he looked up to him, Kavanaugh (himself an avid basketball player and coach) mused that Bias’ death had motivated congressional action to impose harsher penalties on cocaine use, noting only casually that Bias died after using powdered cocaine.  It was, to this observer, a cringe-worthy moment of naivete; to draw a clear path from the traumatizing death of Bias to harsher punishment of crack cocaine is to ignore a sea of racial politics.  Len Bias’s death did not lead Congress to hammer down on Wall Street bankers doing coke.

Yankaw is right to spotlight generally how ugly racial realities were largely ignored throughout the Terry argument.  But even more "cringe-worthy" has been the way Congress, the US Sentencing Commission, the Department of Justice and the courts have created and sustained crazy carceral approaches to drug offenses for many decades even as the illogic, inefficacy and injustice of lengthy federal prison sentences in response to drug issues have been so plainly evident.  Apologies for a bit of a rant, but what follows is actually a reserved accounting of what strikes me a stunningly ugly (and still continuing) example of systemic injustice. 

For starters, what basis did Congress have back in 1986 to think that harsh mandatory minimum prison sentences for any drugs (let alone for crack) would be a sound and sensible way to respond to either the overdose death of a basketball superstar or societal concerns about a new drug problem?  The history of alcohol Prohibition certainly is not a rousing tale of the efficacy of criminal justice responses to substance use, and racial disparities in other drug panics have marked US policies and practices for eons.  Moreover, not long before in 1970, as noted in this article, Congress repealed most drug mandatories with then-Texas Rep. GHW Bush saying doing so would result in "better justice and more appropriate sentences."  

Critically, the carceral craziness of the Anti-Drug Abuse Act of 1986 goes even further than Congress deciding to re-embrace federal mandatory minimum provision for drug offenses.  Congress in 1986 had the even crazier idea to tether its harsh prison mandatory minimums to precise drug quantities rather than to offense role or violent acts or any other sounder sentencing factors.  And Congress further decided that just five grams of crack cocaine — the weight of a single nickel — would be enough to trigger five mandatory years in federal prison (while a full pound of the same stuff in powder form would not).       

As I highlighted in this recent post, in 1991 the US Sentencing Commission wrote a lengthy report to Congress detailing how misguided and racially disparate all mandatory minimum provisions were in operation; in 1995, the USSC wrote another report documenting the extreme racial disparities resulting from the 100-1 crack/powder ratio.  I had the honor in 1995 to still be clerking for Second Circuit Judge Guido Calabresi who wrote at that time in United States v. Then, 56 F.3d 464 (2d Cir. 1995), that, if Congress failed to respond to the USSC's expert analysis, "equal protection challenges based on claims of discriminatory purpose might well lie" or the USSC's reports "might nonetheless serve to support a claim of irrationality." Id. at 468 (Calabresi, J., concurring).

Aggravatingly, Congress did not do anything to address the 100-1 ratio for 15 more years until the Fair Sentencing Act of 2010, during which time tens of thousands of disproportionately black persons received disproportionately severe statutory and guideline sentences for crack offenses.  Critically, the USSC, the DOJ, and the courts ought also be faulted for carceral craziness in this period: the USSC refused for over a decade to even try to change the crack guidelines while awaiting congressional action, the DOJ (under both Prez Clinton and Prez Bush) was generally opposition to any major sentencing reforms, and courts consistently rejected any and all challenges to this racially disparate and irrational sentencing structure. 

Interestingly, the Booker case merits mention in this history not because it happened to be a crack case, but because some federal judges started using their new post-Booker discretion to do better in crack cases and the USSC advanced some modest (but still meaningful) crack guideline amendments as a result.  But, tellingly, DOJ still largely opposed district judges going below the crack guidelines after Booker (which required SCOTUS to issue the important Kimbrough decision), and many district judges still readily and regularly sentenced within the severe 100-1 crack guidelines even after Booker and Kimbrough made clear that they had broad authority to effectuate the USSC's expert analysis that the crack guidelines produced racial disparities and generally recommended prison terms that were much "greater than necessary." 

Of course, in August 2010, we finally get the Fair Sentencing Act from Congress.  Notably, the FSA did not unwind the key carceral craziness of tethering harsh mandatory prison minimums to precise drug quantities, nor did it provide for treating crack and powder offenses similarly.  Rather the FSA simply says it now takes 28 grams grams of crack — the weight of five quarters — to trigger five mandatory years in federal prison (though a full pound of the same stuff in powder form sill will not).  The US Sentencing Commission amends the crack guidelines downward accordingly as instructed by the FSA, and thankfully the federal sentencing world gets just a little bit less carceral crazy going forward for some crack cases. 

But even as the carceral craziness recedes a bit after the FSA of 2010, foolhardy finality fixations kick into high gear.  Notably, as noted in this post, international human rights law generally provides that, when legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively.  But the Obama Justice Department argues in 2010 that federal law required that even crack defendants who had not yet been sentencing when the FSA was enacted still had to be subject to the 100-1 ratio for pre-FSA conduct even through everyone agreed that pre-FSA sentences for crack were unfair, excessive, ineffectual and produced extreme racial disparities.  The Supreme Court in the 2012 Dorsey case — by only a 5-4 margin — decides sentencing courts did not have to keep applying a misguided and suspect sentencing scheme in these pipeline cases.  But all the while the USSC, the DOJ and the courts all readily accept that nobody should get any retroactive benefit from the FSA statutory change simply because Congress did not say expressly that it wanted people still in prison still enduring the 100-1 ratio's carceral knee on their necks to have a chance to argue they should get to sooner breathe the air outside prison walls.           

Critically, as just suggested, retroactivity of lower crack sentences (or any other sentencing changes) in the federal system has never been automatic.  Persons in prison, even if permitted under applicable laws to get to court for resentencing, generally have to prove to a judge that public safety concerns and other equities weigh in favor of a lower sentence.  That is, for Tarahrick Terry and so many others, they are not actually arguing for resentencing, they are arguing that they should just have a chance to argue for discretionary resentencing.  In a law review article some years ago, "Re-Balancing Fitness, Fairness, and Finality for Sentences," I contend it ought to be a lot easier for a defendant to get access to court seeking resentencing because "the conceptual, policy, and practical reasons [that may justify] limiting review and reconsideration of final convictions are not nearly as compelling when only sentences are at issue."  I find it so frustrating discretionary resentencing for crack offenders remains so contested even when each and every federal policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive, ineffectual and produced extreme racial disparities.

Of course, Congress voted almost unanimously for the FIRST STEP Act, which is a huge bill designed to help reduce a lot of federal sentences and which included a provision making the Fair Sentencing Act retroactive.  But, given the SCOTUS argument in Terry, it appears that because Congress did not use just the precise kind of magic words in that statutory provision, the lowest level of all crack offenders are to be categorically excluded from securing even a chance to argue for resentencing.  Sigh.  Injustice must sometimes be one of those turtles going all the way down as carceral craziness and foolhardy finality fixations persist circa 2021.  There are some heartening indications that we all know we can and should be doing a lot better in federal sentencing and elsewhere, but Terry is perhaps a useful reminder that the myriad sentencing and racial injustices of the past are never dead, and they are not even past.

Prior recent related posts on Terry:

• Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act
• Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry
• Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio
• SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity 

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

• SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences
• Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act
• Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing 
• Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry 

Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act

As reported in this new Law360 piece, headlined "First Step Act's Authors Tell Justices Courts Are Misreading It," the First Step Act case currently on the  SCOTUS docket, Terry v. United States, No. 20-5904, and generated some notable amicus briefing.  Here are excerpts from this article:

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.  The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."...

The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.  The Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in....

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

Notably, the broad and diverse coalition of amicus briefs filed in support of the petitioner in Terry includes not only a bipartisan group of Senators, but also: a group of former federal judges, prosecutors, and NACDL; a coalition of states and DC; and the ACLU, NAACP and R Street; Americans for Prosperity; the Constitutional Accountability Center; and the Cato Institute, American Conservative Union, Lincoln Network and Rutherford Institute. 

It will be interesting to see if all these "friends" might led the Justice Department to change its ligation approach to these issues under new leadership.  It will also be interesting to see if there are many (or any) outside groups or other voices eager to make the case that the FIRST STEP Act's retroactivity provisions do not extend to low-level crack offenders.

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

I have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses

As detailed in this press relase from Senator Cory Booker's office, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL), both members of the Senate Judiciary Committee, announced legislation that will finally eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced."  Here is more:

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses vastly differed. For instance, until 2010, someone caught distributing 5 grams of crack cocaine served the same 5-year prison sentence as someone caught distributing 500 grams of powder cocaine. Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color.

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the sentencing disparity from 100:1 to 18:1....  The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law.

And FAMM has this press release highlighting advocates support for this effort to remedy a long-standing and ugly federal sentencing injustice.  Here are excerpts:

FAMM and Prison Fellowship have teamed up to launch the #EndTheDisparity Campaign to urge Congress to eliminate the disparity between crack and powder cocaine-related sentences. Both organizations are circulating petitions and are planning a series of activities to build public support for reform.

“We have been fighting to repeal unjust sentencing laws for 30 years, and we’ve seen no greater injustice than the crack-powder disparity,” said FAMM President Kevin Ring. “We were glad Congress reduced the disparity in 2010, but it’s time to finish the job. We must remove this racially discriminatory scheme from the criminal code.”

In 2010, an overwhelming bipartisan majority in Congress passed and President Barack Obama signed the Fair Sentencing Act, which reduced the crack-powder disparity from 100:1 to 18:1. Lawmakers acknowledged that the arguments for the original disparity had been proven incorrect; crack cocaine is no more addictive than powder and is not more likely to cause violent crime.

“The unequal treatment of crack and powder cocaine offenses is among the most glaring examples of racial discrimination in the criminal justice system,” said Heather Rice-Minus, Senior Vice President of Advocacy and Church Mobilization for Prison Fellowship. “There is no sound scientific reason to punish powder and cocaine offenses differently and more importantly, there is a moral imperative to repent from this injustice.”

Uncontroverted was the fact that lengthy mandatory minimum prison terms for crack offenses disproportionately harmed Black people.  Crack usage rates did not differ greatly between white and Black Americans, but more than 80% of federal crack convictions involved Black defendants.

While the Fair Sentencing Act greatly reduced the number of people subject to the mandatory minimum sentences for crack, Black people still make up more than 80 percent of federal crack convictions....

For more information and background on the disparity and campaign see the resources below:

• Ending the Disparity between Crack & Powder Cocaine Sentencing
• The Justice Chronicles: Racial Inequity (Video featuring Matthew Charles)

SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences

The Supreme Court last night issued this order list which grants review in 14 new cases that will be heard later this SCOTUS Term.  Four of the cases involve criminal issues, and one is a sentencing case concerning the reach and application of the FIRST STEP Act's provisions making the reduced crack sentences of the Fair Sentencing Act retroactive.  This SCOTUSblog post has a lot more about the sentencing case and a brief review of the others:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive.  The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

• Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation....
• United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction....
• United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

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.”

Highlighting just one way that, even after the FIRST STEP Act, "Justice Still Eludes Crack Offenders"

Sarah E. Ryan has this notable new Crime Report commentary headlined simply "Why Justice Still Eludes Crack Offenders." I recommend the whole piece, and here are excerpts:

In early 2007, Carl Smith sold 1.69 grams of crack, less than half a teaspoon.  He also sold a teaspoon of powder cocaine.  A New Hampshire federal judge sentenced him to seventeen-and-a-half years imprisonment, the lowest end of the sentencing guidelines recommendation.

Last spring, Smith sought a sentence reduction under the First Step Act.  The district court denied the request because he was convicted under a statutory subsection unaffected by the new law. In essence, he had sold too little crack to go free.  According to an early 2020 analysis by the U.S. Sentencing Commission, the New Hampshire district courts granted just four sentence reductions under the First Step Act.  The district of Rhode Island granted four times more reductions; the district of Connecticut granted five times as many.

Nationally, the average sentence reduction was 71 months.  As a result, many defendants had served their time and could be released from incarceration.  But not Carl Smith. He remained locked up during a pandemic.  He appealed, arguing that the First Step Act covered his conviction.

After analyzing more than 500 First Step Act cases, including 90 relevant circuit court opinions, I know two things: this area of law remains in disarray and the circuit courts have largely dodged the tough issues.  They remain complicit in a decades-old mass incarceration scheme.

The now-familiar history of the crack laws omits one key fact: Congress knew early on that the drug laws were disproportionately affecting Black defendants.... In 1995, the Sentencing Commission told Congress that Black defendants accounted for nearly 90 percent of crack cocaine convictions and that most of their customers were white.  In 1996, the Bureau of Justice Statistics (BJS) reported the changing nature of the federal prison population using bold-faced sub-headers such as: “An increasing percentage of the Nation’s prisoners are black or Hispanic.”  In 1999, the BJS reported that the length of federal prison sentences had increased 40 percent. 

By the mid-1990s, lawmakers understood that dealers like Carl Smith were serving prison terms usually reserved for second-degree murder, or intentional murder demonstrating an extreme indifference to human life.  Yet Congress provided no relief, for decades.

In 2010, Congress raised the quantity necessary for future statutory minimum sentences in the Fair Sentencing Act; the law did not help defendants sentenced at the height of the drug war.  A few thousand people remained incarcerated under the old crack laws.  Their only hope was an historic reform amounting to an admission of Congressional guilt. The First Step Act was that law.  A bipartisan coalition heralded the First Step Act as the end of the draconian drug laws.  The Act gave sitting judges the authority to reopen the old crack cases and impose more appropriate sentences.... The intent of the law was clear, but some judges wavered.

There are two plausible ways to read the resentencing section — section 404 — of the First Step Act: as a small fix to the Fair Sentencing Act of 2010 or a broad mandate to rectify thousands of unjust sentences.  The broad reading is historically, legally and morally correct.  But hundreds of hearings in, the nation’s district courts remain divided on the law’s most basic tenets, like which defendants can be resentenced or what Section 404 empowers judges to do.

Some judges apply Section 404 narrowly.  A subset dismiss cases involving too little or too much crack without a review of the other facts.  Still others review all cases implicating a Fair Sentencing Act statute, but only to perform a new mathematical calculation.  They do not consider a defendant’s post-sentencing conduct or intervening changes in the law, even favorable state and federal supreme court rulings.  Their narrow interpretations of the law unnecessarily depress the length of sentence reductions.

Other judges construe Section 404 broadly.  They view the First Step Act as a gateway to relief.  Some find that they can revisit the sentences of small-time dealers or inmates serving hybrid sentences for interconnected drug and weapons crimes.  Some believe that they may consider a defendant’s good conduct, prison coursework and recent high court rulings.  Broad-view judges find that Congress empowered them to mitigate the damage of the old crack laws.  Their proof? The text of the law, including the word “impose” as a mandate to issue an independent sentence — and the testimony of a dozen or more senators, of both parties, characterizing the First Step Act as redress for the old drug laws.

Recently, the First Circuit adopted a broad view in Carl Smith’s case [opinion here]. That appellate opinion is reason for hope that the circuit courts will raze the remains of the old crack laws.  This summer, the appellate courts should adopt a broad reading of the First Step Act.  That reading should require sitting judges to issue meaningful sentence reductions, including ‘timed served’ in many cases.

And, it should hold sitting judges accountable for the continued incarceration of non-violent drug dealers who have served a decade or more.  Amidst global protests for freedom, liberation and justice for Black citizens, and a raging pandemic, the courts must fully enact the First Step Act as Congress intended.

I am pleased to see this new commentary calling out lower courts for not giving full effect to remedial aspects of the FIRST STEP Act.  But this analysis should not leave out the problematic role of the Justice Department.  I surmise that DOJ has consistently argued for narrow and limiting approaches to the application of Section 404.  Decades ago, DOJ could reasonably contended that its arguments for severe application of federal sentencing laws were consistent with congressional intent.  Now, DOJ arguments for severe application of federal sentencing laws often clearly fly in the face of congressional intent.

"Judicial Authority under the First Step Act What Congress Conferred through Section 404"

The title of this post is the title of this notable new article authored by Sarah Ryan now available via SSRN. Here is its abstract:

The First Step Act of 2018 promised relief to inmates serving disproportionately long sentences for cocaine base distribution. Section 404, the focus of this article, seemed straight-forward.  But in the spring and summer of 2019, district judges began reviewing § 404 cases and reaching dissonant results.  Appeals followed, focused on four questions of judicial authority: (1) Who may judges resentence?; (2) May judges engage in plenary resentencing or merely sentence reduction?; (3) May judges resentence all concurrent criminal convictions or only crack cocaine convictions?; and (4) Must judges adopt the operative drug quantity from the original sentencing?

Today, the law of § 404 remains incomplete in every circuit.  This article reviews the legislative history, text, and legal context of § 404.  It finds that Congress intended broad judicial authority in § 404 resentencings.

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!).  Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimums. Even before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions

A little opinion yesterday from a Sixth Circuit panel in US v. Smith, No. 19-5281 (6th Cir. May 15, 2020) (available here), has a lot of noteworthy elements.  For starters, the defendant appealed pro se and prevails. And he did so on a claim that the district court's failure to reduce his crack sentence following passage of the Fair Sentencing Act and FIRST STEP Act was problematic. Here is some of the backstory and the heart of the ruling from the panel opinion:  

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 845, 851.  Because he had a prior felony drug conviction, he faced a mandatory-minimum sentence of 20 years of imprisonment, even though his advisory sentencing range under the United States Sentencing Guidelines would otherwise have been 168 to 210 months.  The district court sentenced him to the mandatory minimum: 240 months of imprisonment plus ten years of supervised release.

In 2018, Smith filed a letter with the district court asking for counsel to be appointed to review whether the First Step Act applied to his sentence.... The district court construed Smith’s letter as a motion seeking a sentence reduction under 18 U.S.C. § 3582(c).  The court determined that Smith was eligible for a reduction under § 3582(c) and the First Step Act, but declined to grant one.  United States v. Smith, No. CR 6:06- 021-DCR-1, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019).  Smith now appeals....

The district court acknowledged that under the current sentencing regime, Smith’s guideline range after applying the retroactive guidelines amendments would be 77 to 96 months of imprisonment and he would be subject to a 10-year mandatory-minimum sentence.  Smith, 2019 WL 1028000, at *3.  However, the district court denied Smith’s motion for a reduction, concluding that his original 20-year sentence remained appropriate....

The variance in this case is certainly a major one.  It is twice the maximum of the guideline range set by the statute, and two-and-a-half times what the guideline would otherwise be without the statutory minimum.  Moreover, the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline....

The district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.  After reciting Smith’s criminal conduct that resulted in his 2006 conviction, the district court recalled that it had examined the § 3553(a)(2) sentencing factors and had explained why a sentence of 20 years’ imprisonment was appropriate during Smith’s original sentencing in March 2007.  Beyond relying on the court’s analysis at the original sentencing hearing, the court briefly discussed the nature and circumstances of Smith’s offense and the need to protect the public — two of the § 3553(a) factors.  The court pointed to the scale and harm of Smith’s criminal conduct and determined that Smith has a high risk for recidivism based on statistical information of people who, like Smith, have a significant criminal history.  However, these considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress.  See 28 U.S.C. § 991(b); Rita v. United States, 551 U.S. 338, 348–49 (2007).  This is especially true when the district court previously found the at-guideline range sentence to be appropriate.

Ultimately, the district court failed to provide a sufficiently compelling justification for maintaining a sentence that is now twice the guideline range set by Congress. We are confident on remand that the district court can determine whether, in its discretion, a sentence less than 20 years is appropriate after considering the § 3553(a) factors with reference to the purposes of the First Step Act and Fair Sentencing Act.

I am pleased to see that the Sixth Circuit panel was able to see problems with the ruling below without the help of counsel, but I find jarring and disturbing that the district judge here got this matter started by construing a letter requesting counsel as a motion seeking a sentence reduction that the judge then denied seemingly without any briefing. As readers may recall, just last week the Supreme Court dinged the Ninth Circuit in Sineneng-Smith for taking over a case from the parties, and I think the Sixth Circuit might have reasonably assailed the district judge for similarly problematic behavior here.

Last but not least, it should be noted that the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the US Sentencing Commission.  There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which "considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress."

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

The US Sentencing Commission today released the latest in a series of data reports titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through December 31, 2019 and for which court documentation was received, coded, and edited at the Commission by January 29, 2020.

These new data from the USSC show that 2,387 prisoners have been granted sentence reductions, and that the average sentence reduction was 71 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2400 sentences by nearly 6 years, has now resulted in over 14,000 prison years saved(!).

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had huge impact that can be measure in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

Sixth Circuit clarifies FIRST STEP creates eligibility for reduced sentence whenever Fair Sentencing Act "modified the statutory penalty"

Section 404 of the FIRST STEP Act of 2018 finally provided for retroactive application of statutory changes to reduce federal crack sentences put in place by the Fair Sentencing Act of 2010.  Simple as that might sound, lower courts are still struggling with all the different permutations of who may be eligible for a reduced sentence under FIRST STEP, and a Sixth Circuit panel addressed this issue in a short and effective opinion yesterday in US v. Beamus, No. 19-5533 (6th Cir. Nov. 21, 2019) (available here).  I recommend the opinion in full, but here is the essence in four paragraphs:

Beamus requested resentencing under the First Step Act.  The district court denied this request without reaching the merits, concluding that because the Sentencing Guidelines classify Beamus as a “career offender[],” he is “ineligible for [a] sentence reduction[] under the First Step Act.” ROA 13 at A-2.  Beamus appeals that determination, and the government concedes error.

Rightly so.  By its terms, the First Step Act permits Beamus to seek resentencing. He was convicted of an offense for which the Fair Sentencing Act modified the statutory penalty, and he has not received a reduction in accordance with that Act or lost such a motion on the merits.  The text of the First Step Act contains no freestanding exception for career offenders. Nor would one expect to see such an exception. It makes retroactive the Fair Sentencing Act’s changes to the statutory range for crack cocaine offenses....

It’s true, as the government notes, that the Fair Sentencing Act’s changes to the statutory penalty for Beamus’s drug offense also would have affected his guidelines range.  But that’s happenstance in this instance.  Beamus is eligible for resentencing because, and only because, the Fair Sentencing Act modified the statutory range for his offense.  That the Sentencing Guidelines also would have applied differently does not affect his eligibility for resentencing.

That Beamus is eligible for resentencing does not mean he is entitled to it. The First Step Act ultimately leaves the choice whether to resentence to the district court’s sound discretion.  See First Step Act of 2018, § 404(b); see also United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019).  In exercising that discretion, a judge may take stock of several considerations, among them the criminal history contained in the presentence report.  How do these considerations play out for Beamus?  That’s a question only the district court can answer.  We reverse and remand to give it the opportunity to do so.

The impact of the FIRST STEP Act as told through one (all-too-typical) case

Jesse Wegman has this notable new New York Times piece headlined fully "‘All You Can Do Is Take Care of Your End’: For one inmate serving a life sentence, a new federal law gave hope where there had been none." I highly recommend the piece in full, and here are some extended excerpts:

Imagine that at the age of 28, you’re told you are going to spend the rest of your life in prison with no chance of release. What would you do with all that time?

There’s no shame in admitting you’d want to throw in the towel.  It’s a rational reaction to a hopeless situation: Why bother working to improve yourself, learning something new or making amends if nothing you do will ever make a difference?

Gary Rhines, now 46, had every reason to choose that route, after receiving a mandatory sentence of life without parole in 2004 for being a repeat drug offender.  As a lifer, Mr. Rhines was last in line for all prison programming; no one cared whether he participated or not.  But that didn’t stop him.  He earned his high school equivalency diploma.  He enrolled in drug-treatment and anger-management programs, learned industrial painting and how to operate a forklift.  He received a certificate in a culinary-arts program and worked in the prison chapel.

“All you can do is take care of your end,” Mr. Rhines told me recently in a telephone interview. “I had a list of things that were very important to my success.” If he didn’t do them, he said, “it was me giving up on myself.”

This summer, all those years of work paid off. At a hearing on July 24 in a Harrisburg, Pa., Federal District Court, Judge John E. Jones III resentenced Mr. Rhines to time served — in his case, 18 years, which includes nearly three years of pretrial detention.

The judge was able to impose that sentence thanks to the First Step Act, a new federal law that alleviates some of the most draconian punishments handed down under a string of federal criminal laws and sentencing guidelines passed in the 1980s and 1990s....

The crime that landed Mr. Rhines in prison for life was relatively minor — he was charged with participating in the sale, in Pennsylvania, of 66 grams of crack cocaine, a little more than the weight of a pack of M&Ms.  The crime involved no weapon and no violence. One of his co-defendants received a sentence of nine to 23 months.  But Mr. Rhines had been convicted of selling small amounts of drugs twice before, and that made all the difference: Under the sentencing laws, a third drug conviction involving more than 50 grams of crack meant a mandatory sentence of life without parole....

In requiring stunningly long sentences, the crime bills took power away from judges to make decisions based on a defendant’s unique circumstances — that is, to judge — at the moment such discretion was most needed.  Mr. Rhines’s judge might have taken into account not only the nonviolent nature of his crime, but also that by the age of 7, he was watching his mother use heroin and get physically abused by multiple boyfriends.  Or that because of her drug addiction, he and his brothers and sisters went for stretches without food, heat, electricity or hot water.  Or that he stopped going to school at 11 to provide for his siblings by working as a bag boy at a grocery store.  Or that at age 12, he was forced to sell drugs in local crack houses to pay off his mother’s drug debts and was warned that she would be beaten if he didn’t. In other words, from the time he was a little boy, Gary Rhines never stood a chance....

Congress finally began to reel in some of its longest and most unjust sentences in 2010, when it passed the Fair Sentencing Act, which reduced a glaring disparity in punishments for crimes involving crack and powder cocaine. That should have been good news for inmates like Mr. Rhines, because under the new law, the amount of crack he was convicted of selling no longer triggered a mandatory life sentence. The problem was that the 2010 law applied only to future cases, not past ones.

This is where the First Step Act comes in.  Signed last December by President Trump, it slashed the length of drug sentences — for example, the top mandatory-minimum punishment for a third-strike drug offense is now 25 years rather than life. The law also gave judges more power to reduce individual sentences and authorized $75 million in annual funding for prison programs that will help prepare inmates for release.  Most important, it made the 2010 sentencing law retroactive, which helps the thousands of inmates, like Mr. Rhines, who have been serving absurdly long sentences under a law that Congress itself said was unjust nearly a decade ago.

At Mr. Rhines’s resentencing hearing in July, where he recounted his brutal childhood, Judge Jones noted the painfully slow evolution of America’s criminal-justice system. “It’s taken essentially a quarter century for policymakers to figure out the fundamental unfairness” of those harsh 1980s and 1990s drug laws, the judge said.  He also noted that the trial judge in Mr. Rhines’s case, James McClure, had been frustrated at having his hands tied by the law. “That deprived Mr. Rhines of the determination of a very fair jurist,” Judge Jones said, “who carefully evaluated every case that came before him.” (Judge McClure died in 2010.)

Finally, Judge Jones took note of Mr. Rhines’s self-rehabilitation in an indifferent environment. “Without any hope,” the judge said, “you participated in a number of these programs, which is very impressive to me.”...

The prosecutor on the case requested that the judge resentence Mr. Rhines to 30 years, which was the term recommended under federal sentencing guidelines. Judge Jones declined. “I just don’t know rationally how anybody can contend with the circumstances of this case, including Mr. Rhines’s personal circumstances,” the judge said, and conclude “that they warrant a 30-year sentence for 66.6 grams of cocaine. That defies credulity and logic, in my view.” In an email further explaining his decision, Judge Jones told me that he considered Mr. Rhines to be “the very face of the First Step Act” and said it was “unjust, and in fact ludicrous, to have this model inmate spend additional time in federal prison.”

As of August, nearly 1,700 people, 91 percent of them black like Mr. Rhines, have gotten new, shorter sentences under the First Step Act, according to a report by the United States Sentencing Commission. The average reduction is nearly six years, bringing the average sentence of these inmates down from about 20 years to 15 — hardly flinging open the prison gates. But it is part of the larger shift toward a more humane criminal-justice system that has swept the country over the past decade and helped shrink the federal prison population to about 180,000 today, from a high of 220,000 in 2013.

This is real progress, and it is why the First Step Act has been praised as a rare bipartisan success story — one all the more remarkable for the political delicacy of its subject matter.  Mr. Trump himself called the older drug sentences “very unfair,” particularly to black inmates like Mr. Rhines.

Still, the law comes up short in important ways. The biggest is that its new reductions of sentences for drug crimes do not apply to past cases. That’s an especially glaring omission given that the First Step Act fixed the identical problem in the 2010 law. In other words, Congress failed to heed its own lesson: If a sentence is determined to be unjust, isn’t it unjust in all situations? Why should it matter when a prisoner was convicted?

This well-told story helps put some more names and faces to what the FIRST STEP Act has helped achieved.  But the piece also highlights just how far we still have to go to truly achieve new attitudes and new approaches to crime and punishment.  I cannot help but still see dark facts in this often bright story: the dark fact that federal prosecutors in 2019 still urged an additional dozen years in federal prison for the sale of less than 2.5 ounces of crack, the dark fact that Congress could not bring itself to include at least modest measure of retroactivity with its modest reforms of extreme mandatory minimums in the FIRST STEP Act, and the dark fact that there are so many human variations on Mr. Rhimes among the tens of thousands of federal prisoners whose stories will not get so well told.

US Sentencing Commission releases latest data report on crack offense resentencings thanks to FIRST STEP Act

Late Tuesday afternoon the US Sentencing Commission released this updated new data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted.  The data in this report reflects all motions granted through July 31, 2019....

This new data from the USSC show that 1,674 prisoners were granted sentence reductions, and of those "in 561 cases the court sentenced the offender to the length of time he or she had served to that date."  In all the other cases, the average sentence reduction was 69 months of imprisonment.

As I have highlighted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation, and yet these data show how this small piece has had big impact. In the course of eight months, this part of the FIRST STEP Act has shortened nearly 1700 sentences by an average of nearly 6 years amounting to around 10,000 prison years saved.

Spotlighting how some federal prosecutors are pushing back on some applications of FIRST STEP Act crack retroactivity

Reuters has this notable and lengthy new article on some skirmishes over the crack sentencing retroactivity piece of the FIRST STEP Act under the headline "As new U.S. law frees inmates, prosecutors seek to lock some back up." I recommend the piece in full, and here are excerpts:

Monae Davis walked out of prison on March 7, thanks to a new law that eased some of the harshest aspects of the United States’ war on drugs.  Now the U.S. Justice Department is trying to lock him back up.

As Davis, 44, looks for work and re-connects with his family, U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence under the First Step Act, a sweeping criminal-justice reform signed into law by President Donald Trump last December.  “They’re prosecutors — it’s their job to make it hard on people,” he said. “Do I think it is right? No, it’s not fair.”

Even as thousands of prison inmates have been released by judges under the new law, federal prosecutors have fought scores of petitions for reduced sentences and are threatening to put more than a dozen inmates already released back behind bars, Reuters found in an analysis of these cases.  The reason: the Justice Department says the amount of drugs they handled was too large to qualify for a reduced sentence.

Davis, for example, reached a deal in 2009 with U.S. attorneys in western New York to plead guilty to selling 50 grams or more of crack, resulting in his 20-year sentence.  Under First Step guidelines, that carries a minimum sentence of five years, less than half the time he has already served.  But prosecutors say Davis should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms, which even under current guidelines is too high to qualify for a sentence reduction.

In a statement, the Justice Department said it is trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution.  The department said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” the department said....

More than 1,100 inmates have been released so far under this [Fair Sentencing Act retroactivity] provision in the new law, according to the Justice Department. (Another 3,100 here are being released under a separate provision that awards time off for good conduct.)

In most of the 1,100 sentence-reduction cases, U.S. prosecutors did not oppose the inmate’s release. But in at least 81 cases, Reuters found, Justice Department lawyers have tried — largely unsuccessfully so far — to keep offenders behind bars. They argue that judges should base their decision on the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.

The difference between the two amounts in these cases is often significant — and, depending on whether a judge agrees with prosecutors’ objections, can mean years of continued incarceration rather than immediate release.

Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington. One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.

The federal government has lost 73 of 81 cases in which the issue has arisen so far, according to the Reuters analysis. Prosecutors have appealed at least three of those decisions and indicated they intend to appeal 12 more. If they succeed, men like Davis would return to prison.

First Step Act advocates say the Justice Department is undercutting the intent of the law. “Many of these people have served in prison for five, 10, 15, 20 years and more. It’s time for them to be able to get on with their lives, and the notion the Department of Justice is just going to keep nagging at them and appealing these cases is not what we ever had in mind,” Democratic Senator Dick Durbin, one of the law’s authors, told Reuters.

Encouraging news and inspiring notes as White House celebrates FIRST STEP Act

This Washington Examiner piece, headlined "Trump announces Second Step Act to help ex-prisoners find work," reviews some highlights from today's celebration of the FIRST STEP Act at the White House today. Here are excerpts:

President Trump announced plans Monday for a Second Step Act focused on easing employment barriers for formerly incarcerated people.  "We are proving we're a nation that believes in redemption," Trump said at a White House event celebrating people released under the First Step Act, which he signed in December.

Trump said the "second step" legislation will feature a $88 million funding request for prisoner social reentry programs. "Today, I'm announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that's what we're starting right away," Trump said....

Some advocates had urged deeper sentencing reforms in a second major criminal justice reform bill.  Troy Powell, whose crack cocaine sentence was shortened by the First Step Act, spoke at the event Monday and called for more action to release inmates.  "There's more that can be done. I left so many people behind in prison doing 40, 50 years for nothing, I mean absolutely nothing," Powell said.  "I think there should be a second step."

Trump applauded Powell. "Could I have said it better than that?  His statement about so many people?  And that's true, so many people are there that really are serving 40 and 50 year sentences for things you wouldn't even believe, for things some people wouldn't even be going to prison for today," he said....

Trump said his administration would also "encourage employers to adopt second chance hiring practices," and gave rare applause to the media for favorable coverage of Alice Johnson, whose drug sentence he shortened last year using his executive clemency powers.  "Alice said, 'I also want to thank the media.' I bent over and said, 'Are you sure?' And I do too, I think that's fantastic," Trump said.

One speaker at the event, former prison inmate and Georgetown University law professor Shon Hopwood, was introduced by Trump as a current teacher of his daughter Tiffany Trump. "I think you're going to be rewarded in a way you cannot even imagine," Hopwood told Trump.

Via this twitter link, one can watch the full clip of Prez Trump speaking about criminal justice reform and hear the inspiring comments of a number of former federal prisoners who have been helped by the FIRST STEP Act.  Also, the White House released this "Fact Sheet" today titled "President Donald J. Trump Is Committed to Building on the Successes of the First Step Act."  The whole document is notable, and here are excerpts:

• Over 16,000 inmates are enrolled in a drug treatment program offered as part of the robust drug treatment strategy managed by the Bureau of Prisons (BOP).
  • To date, BOP has assessed over 400 inmates for participation in Medication Assisted Treatment programs designed to aid in their recovery.

• The First Step Act provided the opportunity for sentencing relief for certain defendants who received mandatory minimum sentences prior to the Fair Sentencing Act of 2010.
  • 721 defendants have received sentence reductions, 573 of which have resulted in inmates being released....

• President Trump’s fiscal year 2020 Budget proposes over $500 million for various Federal programs to help prisoners succeed in society after their release, including:
  • $234 million for the Department of Justice to support reentry programs, inmate education, and occupational training programs.
  • $78 million for the Department of Labor to improve employment outcomes for formerly incarcerated adults and young adults.

• In 2019, the Department of Education will provide $28 million for a Pell grant pilot program to help eligible incarcerated Americans pursue postsecondary education.

Will the FIRST STEP Act's crack retroactivity provisions result in many reduced sentences beyond those serving mandatory-minimum terms?

The question in the title of this post is prompted by a notable "Order Reducing Sentence" entered earlier this week in US v. Tucker, No. 3:00-cr-00246-2 (S.D. Iowa, Jan. 23, 2019) (available for download below). A little background is need to explain the question and what seems especially notable about this Tucker order.

As many readers know, Section 404 of the enacted version of the FIRST STEP Act retroactively applies the Fair Sentencing Act of 2010. I have assumed this section entailed only that (many) federal prisoners still serving crazy-long mandatory minimum sentences for crack offenses could get their sentences reduced.  I figured the retroactivity benefits would be confined to those serving crack mandatory-minimum terms, rather than guideline sentences, because the US Sentencing Commission had already reduced the crack guidelines and made those reduced guidelines retroactive.

But, interestingly, though Logan Tucker was convicted and sentenced in 2001 for a crack offense, his original sentence of of nearly 22 years (262 months) was driven not by a statutory mandatory minimum provision, but rather by the career-offender provisions of the (then mandatory) guidelines.  Though Tucker's sentence for a crack offense was driven by the guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a reduced sentence based on retroactive crack guideline reductions because of his career offender status. 

But now, thanks to the FIRST STEP Act, Tucker can benefit according to the analysis of US District Judge Robert Pratt.  Specifically, because Tucker was originally sentenced under a "covered offense" and also because the Fair Sentencing Act the lowered the statutory maximum he would have faced which, in turn, lowered his guideline level under the career-offender guideline, Judge Pratt concludes he can and should impose a reduced sentence for Tucker set at "188 months, the low end of the new Guidelines Range" (which, in turn, entails "a sentence reduction of seventy-four months, more than enough to warrant immediate release").

In addition to the notable outcome, I think it important and notable that federal prosecutors in this case conceded that the FIRST STEP Act authorized Judge Pratt to impose a reduced sentence (though they did urge Judge Pratt to exercise his discretion not to reduce Tucker's original sentence).  In other words, federal prosecutors in this case did not claim that FIRST STEP retroactivity benefits must be confined only to those serving crack mandatory-minimum terms, rather than guideline sentences.

So, in addition to spotlighting this interesting echo of the FIRST STEP Act's crack retroactivity provisions, I am eager to hear if lots of other courts are now considering sentence reductions for lots of other crack defendants whose terms are not directly tethered to crack mandatory-minimum terms.  I would guess that this kind of "career offender" situation may be most likely to arise, but perhaps there are other important ways in which persons sentenced to long crack terms who missed prior retroactivity opportunities now can benefit.

Download Tucker sentence reduction order 07712866067  

UPDATE:  It dawned on me after I did this post that the high-profile case of Matthew Charles, who secured release just a few days after the enactment of the FIRST STEP Act, is another example of a defendant sentenced under the career offender guideline getting retroactive relief.  Thus this Tucker ruling is not itself ground-breaking, but it further highlights the sorts of folks now able to benefit from a key sentencing provision that was added to the original prison-reform-only version of FIRST STEP.

"Mandatory minimum sentencing policies and cocaine use in the U.S., 1985–2013"

The title of this post is the title of this notable new research published in the journal BMC International Health and Human Rights and authored by Lauryn Saxe Walker and Briana Mezuk. Here is its abstract:

Background

As of May 2017, the United States federal government renewed its prioritization for the enforcement of mandatory minimum sentences for illicit drug offenses.  While the effect of such policies on racial disparities in incarceration is well-documented, less is known about the extent to which these laws are associated with decreased drug use.  This study aims to identify changes in cocaine use associated with mandatory minimum sentencing policies by examining differential sentences for powder and crack cocaine set by the Anti-Drug Abuse Act (ADAA) (100:1) and the Fair Sentencing Act (FSA), which reduced the disparate sentencing to 18:1.

Methods

Using data from National Survey on Drug Use and Health, we examined past-year cocaine use before and after implementation of the ADAA (1985–1990, N = 21,296) and FSA (2009–2013, N = 130,574). We used weighted logistic regressions and Z-tests across models to identify differential change in use between crack and powder cocaine.  Prescription drug misuse, or use outside prescribed indication or dose, was modeled as a negative control to identify underlying drug trends not related to sentencing policies.

Results

Despite harsher ADAA penalties for crack compared to powder cocaine, there was no decrease in crack use following implementation of sentencing policies (odds ratio (OR): 0.72, p = 0.13), although both powder cocaine use and misuse of prescription drugs (the negative control) decreased (OR: 0.59, p < 0.01; OR: 0.42, p < 0.01 respectively).  Furthermore, there was no change in crack use following the FSA, but powder cocaine use decreased, despite no changes to powder cocaine sentences (OR: 0.81, p = 0.02), suggesting that drug use is driven by factors not associated with sentencing policy.

Conclusions

Despite harsher penalties for crack versus powder cocaine, crack use declined less than powder cocaine and even less than drugs not included in sentencing policies.  These findings suggest that mandatory minimum sentencing may not be an effective method of deterring cocaine use.

FIRST STEP Act leads to release of Matthew Charles from federal prison after remarkable re-incarceration

I discussed in this post from last May the remarkable case of Matthew Charles, who a few years ago had his 35-year sentence reduced thanks to lower crack sentencing guidelines, but thereafter was reincarcerated when the Sixth Circuit concluded he was not eligible to benefit from guideline changes.  Now, as this local article details, Charles today has been freed thanks to the FIRST STEP Act:

Matthew Charles, a man who was forced to return to prison after a court reversed a judge's ruling that his sentence was unfair, will be released again after the passage of a sweeping federal law that allows courts to shorten unduly harsh prison terms.

U.S. District Judge Aleta Trauger ruled on Thursday that Charles was "entitled to immediate release" under the new law, known as the First Step Act.

Charles, 52, was sentenced to 35 years in prison on charges that he trafficked crack cocaine in 1996. Advocates and experts have argued that sentence was unfair because punishments at the time were much lower for people convicted of dealing powder cocaine. Over the years, reform laws have aimed to address the disparity by shortening sentences for crack cocaine. Charles' attorneys argued the Fair Sentencing Act, passed in 2010, justified lowering his term.

In 2015, former federal judge Kevin Sharp agreed Charles deserved a shortened sentence. As a result, Charles was released in 2016. He did not re-offend.

But after an appeals court reversed Sharp's ruling, Charles was ordered to serve a full 35 years behind bars. As Charles prepared to return to prison in 2018, his case received national attention in part due to coverage from Nashville Public Radio.

But the new First Step Act, passed into law late in 2018, allowed judges to apply the drug sentencing reforms of the Fair Sentencing Act retroactively. The law cleared the way for Charles' sentence to be reconsidered again.

Federal public defenders representing Charles asked for his sentence to be lowered on Dec. 27, days after the First Step Act was signed by President Donald Trump. Prosecutors responded Wednesday, saying they did not oppose his release because it was allowed under the new law. "Because Congress has now enacted a new law that does appear to make Charles legally eligible for a reduced sentence, the government does not object to the court exercising its discretion to reduce Charles’s sentence," the federal prosecutors wrote....

"Justice prevailed here," Sharp, the former federal judge, said in an interview. "It gives you hope that it can happen again." Sharp, who has become a leading advocate for sentencing reform, said Charles was "a poster child for why this act was needed." The former judge mentioned Charles' case during a meeting with Trump to discuss inequality in the criminal justice system.

The problem, Sharp said, is that Charles' case is not unique. It is similar to many others that do not receive publicity or review. "There are thousands of them out there," Sharp said. "We can't quit."

Prior related post:

• The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing 

Supreme Court delivers split decision for federal defendants in sentence modification cases of Hughes and Koons

Though the Supreme Court's ruling today about wedding cakes is sure to be what is most remembered from the first set of June 2018 opinions, the Court gave sentencing fans a lot to review with opinions in Hughes v. United States and Koons v. United States.  The opinion in Hughes v. United States, No. 17–155 (S. Ct. June 4, 2018) (available here), will be a disappointment to some SCOTUS-watchers because the Court avoided addressing the Marks rule concerning fractured opinions.  But Hughes will not be a disappointment those sentencing fans who will be excited to see that Justice Gorsuch joined a majority opinion authored by Justice Kennedy in favor of a broad interpretation of who is eligible for sentence modification under retroactive guideline reductions. The opinion in Koons v. United States, No. 17- 5716 (S. Ct. June 4, 2018) (available here), was a unanimous opinoin authored by Justice Alito, which informed readers likely know means it federal prosecutors prevailed.

Here are some key sentences from the Hughes majority:

To resolve the uncertainty that resulted from this Court’s Opinion of the Court divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement....

This interpretation furthers §3582(c)(2)’s purpose, as well as the broader purposes of the Sentencing Reform Act.  “The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences.” Freeman, 564 U.S., at 533. “Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes [is] too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.” Ibid.  And there is no reason a defendant’s eligibility for relief should turn on the form of his plea agreement.

Here is the start of the unanimous (and very short) Koons opinion:

Under 18 U. S. C. §3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission.  The five petitioners in today’s case claim to be eligible under this provision.  They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders.  We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for §3582(c)(2) sentence reductions.

"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"

The title of this post is the title of this notable and timely new report from the US Sentencing Commission. Here is a summary of its coverage and findings from this USSC webpage:

The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.

In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.

Key Findings

The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".

Key findings of the Commission’s study are as follows:

• The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

• Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.

• Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.

Spotlighting prisoners still stuck in federal prison because of absence of retroactive application of Fair Sentencing Act

Kara Gosch has this new Washington Post commentary headlined "Thousands are stuck in prison — just because of the date they were sentenced." Here are excerpts:

Eugene Downs sits in federal prison years longer than justice demands.  On Aug. 2, 2010, Downs was sentenced to a mandatory minimum sentence of 10 years for conspiring to distribute at least 50 grams of crack cocaine.  The very next day, President Barack Obama signed the Fair Sentencing Act, a law that limited mandatory minimum sentences for crack cocaine and the number of cases subject to them.

If Downs had been sentenced one day later, he would now be free, because the Fair Sentencing Act reduced the sentence for distribution of 50 grams of crack cocaine to five years.  Incidentally, Downs’s co-defendants were all sentenced after Aug. 2 and benefited from the lowered penalties.

Earlier this month, the U.S. Court of Appeals for the 6th Circuit ruled there is nothing it can do to help Downs....

Thanks to efforts from civil rights and criminal-justice-reform organizations, the Obama administration signed onto the Fair Sentencing Act, which reduced the drug quantity ratio between powder and crack cocaine that triggers the mandatory minimums from 100-1 to 18-1.  The law’s disparity is still unjustified, but the 2010 reform was a big step in the right direction.

Unfortunately, the law failed to account for people already in prison under the outdated penalties. According to a document generated by the Sentencing Commission for Congress, 3,147 people could benefit from retroactivity of the law. Eight-nine percent of these prisoners are black. Eugene Downs, who is African American, is just one of them.

Legislation to apply the Fair Sentencing Act retroactively has garnered bipartisan support in Congress. In 2015, the Judiciary committees in both the House and the Senate approved legislation that would have made Downs eligible for early release. Unfortunately, election-season politics and demagoguery from a handful of Republicans, including then-Sen. Jeff Sessions, doomed the bill.

There is some hope: Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) reintroduced the proposal last year with reforms that would reduce sentences for an even greater number of low-level drug offenses. Many of those provisions would be made retroactive. House Republicans have yet to reintroduce a similar bill in their chamber, but Speaker Paul D. Ryan (R-Wis.) has put criminal-justice reform on his list of priorities for 2018.

Still, President Trump has not indicated that he shares in the bipartisan enthusiasm for sentencing reform. While he recently convened a White House meeting with governors and conservative allies to extol the virtues of second chances and rehabilitation, his decision to put Sessions in charge of the Justice Department is not promising.

In any case, the retroactive application of the reformed sentencing laws should be an exception for “tough on crime” crusaders. Sometimes unfair laws punish people who deserve a second chance. We cannot allow the random day on which people are sentenced to prison be their primary obstacle to justice.

Regular readers surely know I am deeply sympathetic to the concept of giving broad retroactive effect to ameliorative changes in sentencing laws.  But the story of Eugene Downs strike me a bit peculiar in this context because, as noted in 2010 posts here and here, the Fair Sentencing Act was approved by both houses of Congress on July 28, 2010 and received plenty of media attention on July 29, 2010.   Arguably, one could blame Prez Obama for Eugene Downs' fate because he waited a week to sign the FSA.  Perhaps more properly, one should probably blame an attorney for Eugene Downs' fate for failing to seek a sentencing continuance in light of a pending critical legal change.

AG Jeff Sessions our "crime problem" while expression concern about the "move to even lighter sentences"

US Attorney General Jeff Sessions today delivered this speech to the Oklahoma Sheriffs’ Association, and the speech includes comments about rising crime and support for law enforcement that have become staples of the AG's recent speeches.  But this latest speech also indirectly addresses the latest bipartisan talk of federal sentencing reform and covers some other new ground.  Here are excertps:

But today we are fighting a multi-front battle: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, combined with a culture in which family and discipline seem to be eroding further and a disturbing disrespect for the rule of law.

After decreasing for nearly 20 years because of the hard but necessary work our country started in the 1980s, violent crime is back with a vengeance.  In 2016, the nationwide homicide rate increased by another 7.9 percent, resulting in a total surge of more than 20 percent since 2014. Not a little matter.

As homicide deaths have gone up, drug overdose deaths have gone up even faster.  Preliminary data show that more than 60,000 Americans died from drug overdoses in 2016. Not only is that the highest drug-related death toll in our history, but it is also the fastest increase in drug deaths we’ve ever seen.  That’s more than the population of Midwest City — dead in just one year.  For Americans under the age of 50, drug overdoses are now the leading cause of death.

Oklahoma isn’t immune to these problems.  This wonderful state suffered a 40 percent increase in murders between 2014 and 2016, and the number of drug overdose deaths has surged by more than 67 percent in the last decade.

And yet, despite the national surge in violent crime and the record number of drug deaths over the last two years, there is a move to even lighter sentences. We must be careful here. Federal prison population is down 15 percent — the average sentence is down 19 percent. Crime is up.

Sometimes it is prudent to review sentences and determine if some might be too harsh or too light.  For example, I led the effort with my then-colleague Senator Durbin to reduce the sentencing disparity between crack and powder cocaine from 100 to 1 all the way down to 18 to 1.  That was the right thing to do.

But I'm afraid we don’t have a sentencing problem; we have a crime problem.  If we want to bring down our prison population then we should bring down crime.

So what should we do?  What has been proven to work?

In 1984 I had been a federal prosecutor for six years when Congress passed the Sentencing Reform Act.  This law instituted mandatory minimum sentences, sentencing guidelines, truth in sentencing, and ended federal parole.  I was a prosecutor before this law, and I was a prosecutor after it went into effect.  It’s clear to me that it worked. We saw crime rates cut in half, neighborhoods revitalized, and general law and order restored on our streets.

Why did it work?  Most people obey the law.  They have no desire to inflict violence on their neighbors or traffick deadly drugs to suffering addicts.  They want to be safe. No, most crimes are committed by a relatively few number of criminals.  Putting them behind bars makes us safer.

Experienced law enforcement officers like you understand that.  You are the thin blue line that stands between law-abiding people and criminals.  You protect our families, our communities, and our country from drugs and violence.  Every American benefits from that work, and the vast majority of our country appreciates what you do.

But some would undermine this support by portraying law enforcement officers as the enemy.  But we’ve seen a shocking and unacceptable level of violence toward police officers in this country.

Earlier this week, the FBI released its annual report on violence against police officers.  The report showed a more than 60 percent increase last year in the number of officers feloniously killed in the line of duty.  It also shows a 14 percent increase in the number of officers assaulted on duty. According to the report, 150 officers were assaulted every day on average last year....

You deserve the support and respect of every American, and I’m here today on behalf of President Trump and the Department of Justice to say thank you.  I am proud to stand with you. The Department of Justice is proud to stand with you.  We have your back.  We understand one thing, criminals are the problem, law officers are the solution....

Helping law enforcement do their jobs, helping the police get better, and celebrating the noble, honorable, essential and challenging work of our law enforcement communities will always be a top priority of President Trump and this Department of Justice.  We will always seek to affirm the critical and historic role of sheriffs in our society and we will not participate in anything that would give the slightest comfort to radicals who promote agendas that preach hostility rather than respect for police.

Highlighting Justice Gorsuch's interesting concurrence in Hicks on the perils of permitting sentencing error to persist

Adam Liptak has this effective new article in the New York Times about the effectiveness of the new Justice on the Supreme Court, Neil Gorsuch. The article is headlined "Confident and Assertive, Gorsuch Hurries to Make His Mark," and it develops the point that Justice Gorsuch's "early opinions were remarkably self-assured." The article and that line reminded me that I have been meaning to highlight Justice Gorsuch's remarkable little concurrence on the final day of the term in the Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here).

Hicks is a quirky case in a quirky posture after the defendant was sentenced under the wrong crack sentencing law during the transitional uncertainty after the passage of the Fair Sentencing Act. The government admits in its briefing to SCOTUS that Hicks' 20-year mandatory-minimum sentence was legally erroneous, but the government asked SCOTUS to remand the case to the Fifth Circuit to conduct the full plain error analysis. The Supreme Court did just that via a short order, but the Chief Justice joined by Justice Thomas dissented with a short opinion suggesting that SCOTUS should make a plain error decision before being willing to vacate the judgment below. This dissent, it seems, prompted Judge Gorsuch to want to defend the Court's action and in so doing he had a lot of interesting things to say. These passages from the end of his concurrence in particular caught my attention:

A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute.  No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome.  Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U.S.C. §3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence.  So there can be little doubt Mr. Hicks’s substantial rights are, indeed, implicated.  Cf. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016).  When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success.  For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?  Cf. United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (CA10 2014).

Now this Court has no obligation to rove about looking for errors to correct in every case in this large country, and I agree with much in Justice Scalia’s dissent in Nunez v. United States, 554 U.S. 911, 911–913 (2008), suggesting caution..... But, respectfully, I am unaware of any such reason here.  Besides, if the only remaining objection to vacating the judgment here is that, despite our precedent routinely permitting the practice, we should be wary of remanding a case without first deciding for ourselves the latter elements of the plain error test, that task is so easily done that in this case that I cannot think why it should not be done. Indeed, the lone peril in the present case seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.

Based on Justice Gorsuch's votes in a few other criminal cases, early indications suggest that he is far more often going to vote in favor of the government rather than in favor of criminal defendants across the range of criminal law and procedure cases.  But his decision to write separately in this little case to push back at the dissenters here with this particular language leads me to wonder if Justice Gorsuch (like the Justice he replaced) might prove to be an especially interesting and unpredictable vote and voice in federal sentencing cases in particular.

"Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act"

The title of this post is the title of this notable new article by David Bjerk just published by the Journal of Empirical Studies. Here is the abstract:

The Fair Sentencing Act of 2010 (FSA) affected the U.S. federal mandatory minimum sentencing laws for crack cocaine offenders, and represented the first congressional reform of sentencing laws in over 20 years.  A primary goal of this legislation was to lessen the harshness of sentences for crack cocaine offenders and decrease the sentencing gap between crack defendants and powder cocaine defendants.  While the mean sentence length for crack offenders fell following the implementation of the FSA, these changes appear to primarily reflect the continuation of ongoing sentencing trends that were initiated by a variety of noncongressional reforms to federal sentencing policy that commenced around 2007.  However, the FSA appears to have been helpful in allowing these trends to continue past 2010.

"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...

The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer.  Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system.  And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena.  With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):

As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.

In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.

There are two key reasons for the population explosion — both rooted in the war on drugs.  First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.

The most egregious of these policies were tied to crack cocaine offenses.  Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison.  That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty.  Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.

Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office.  The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases.  Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.

While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences.  That is a story of both politics and policy.  During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial  boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office).  Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....

Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”

Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.

It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform.  Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform.  But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge.  Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.

1.  The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options."  This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).

2.  The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment.  As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."  

I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election.  Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town.  This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.

Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform

The Wall Street Journal has this new article flagging the sentencing reform work of Senator Jeff Sessions, who is Prez-Elect Donald Trump's pick to serve as our next Attorney General. The article is headlined "Jeff Sessions, Civil-Rights Groups Find Some Common Ground on Crack Sentencing: Attorney-general pick, targeted for his record on race, advocated for parity in cocaine punishments." Here are excerpts:

Civil-rights groups are set to battle Sen. Jeff Sessions’s nomination as attorney general over what they see as his disturbing record on racial equality. But there is one chapter in the former prosecutor’s career where they share a sliver of common ground.

Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime. There has been a growing consensus that harsh penalties for crack, typically bought and sold on city streets, have taken an undue toll on African-American communities, while black leaders have long viewed the disparity as little short of racist.

To Mr. Sessions’s critics, the issue doesn’t come close to compensating for his career-long opposition to expanding civil-rights protections and reducing mandatory sentences, and more broadly for what they see as a general indifference to issues important to minorities.

But to the Alabama senator’s supporters, it is an overlooked part of a résumé they say is sometimes caricatured. “This was a personal agenda item for him,” said Matt Miner, Mr. Sessions’s former chief counsel. “This law was not calibrated to target serious drug dealers and was disproportionately affecting African-Americans, and it offended him.”

In a rare bipartisan move, Mr. Sessions and Democratic Sen. Dick Durbin of Illinois ultimately struck a deal in 2010 to reduce, though not eliminate, the sentencing disparity. Mr. Sessions hung a copy of the resulting legislation, signed by President Barack Obama, in a prominent spot in his office next to his desk, Mr. Miner said....

In 1995, the U.S. Sentencing Commission tried to put the sentencing guidelines on par, but Congress rejected the proposal. Weeks later, riots broke out in the federal prison in Talladega, Ala., and spread to other federal facilities, an uprising the Bureau of Prisons attributed partly to Congress’s rejection of the cocaine measure. Mr. Sessions, then Alabama’s attorney general, was elected to Congress the following year. His first sentencing bill, in 2001, lowered the sentencing disparity to 20-to-1.

Mr. Sessions declined to comment for this article. But he told The Wall Street Journal at the time that the crack penalties were unfair and in many cases made cities less safe, not more so. On the Senate floor, he cited studies showing that African-Americans made up 84% of defendants sentenced for trafficking crack but only 31% of those sentenced for powder. “The five-gram trigger point for crack that was intended to protect African-Americans has resulted in heavy penalties for African-Americans, penalties that lack a rational basis,” Mr. Sessions said in 2002. He reintroduced the proposal in 2006 and 2007.

The Fair Sentencing Act, ultimately signed into law in 2010, raised the trigger for a five-year sentence to 28 grams of crack and the 10-year trigger to 280 grams of crack. The triggers for powder cocaine remained at 500 and 5,000 grams.

Advocates for criminal-justice changes aren’t expecting much support from Mr. Sessions on some of their other priorities. “It’s not entirely clear why he supported the Fair Sentencing Act,” said Marc Mauer, executive director of the Sentencing Project, which worked with Mr. Sessions on the issue for years. Mr. Sessions has opposed efforts to reduce sentences for nonviolent drug offenders and to investigate law-enforcement agencies accused of violating civil rights.

Others are even more downbeat.

“He has taken positions so diametrically opposed to civil and human rights that there is little hope he would bring the sense of hope and openness he brought to the Fair Sentencing Act to the job of attorney general,” said Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights. “I consider it a one-off where he could show he was more enlightened and less doctrinaire than some of his colleagues.”

Mr. Henderson’s group is one of 145 organizations that signed a letter opposing Mr. Session’s nomination. The letter cites racially insensitive remarks allegedly made by Mr. Sessions; his unsuccessful prosecution of three black voting-rights activists on fraud charges; his support for voter ID laws that many activists say are designed to tamp down minority voting; and his opposition to a 2009 law expanding federal prosecution of hate crimes....

Kevin Ring, vice president of Families Against Mandatory Minimums and himself a former offender, said he hopes Mr. Sessions will at least leave discretion to federal prosecutors rather than ordering them to seek maximum penalties. “I’m looking for a silver lining,” he said.

A few prior related posts on Senator Sessions and sentencing reform:

• So who is happy or sad about Jeff Sessions for Attorney General?
• Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
• Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive
• How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?

Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive

Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), has this notable new Huffington Post commentary headlined "The Least Congress Can Do on Criminal Justice Reform." Here are extended excerpts:

Five and a half years ago, I wrote an op-ed in this space in which I urged Congress to apply retroactively the recently passed Fair Sentencing Act of 2010 (FSA).  The FSA reduced the indefensible disparity between crack and powder cocaine sentences from 100:1 to 18:1.  Every member of the U.S. Senate, including Senator Jeff Sessions (R-AL), supported the FSA because they recognized that there was simply no scientific or public safety rationale for the disparity and yet ample evidence of its racially discriminatory effect.  Yet five and a half years later, Congress still has not approved FSA retroactivity.

There are approximately 4,900 individuals still serving the crack cocaine sentences Congress repudiated when it passed the FSA.  They are the people whose cases we used to illustrate why the law needed to change, yet they did not benefit.  After the FSA passed, the U.S. Sentencing Commission fixed all of the non-mandatory minimum crack sentences by lowering its guidelines consistent with the new law.  But the Commission only has authority to changes its guidelines, not mandatory minimum punishments set by Congress and found in statutes.

Today, legislation to make the FSA retroactive is included in a broader sentencing reform bill, which was introduced by Senator Chuck Grassley (R-IA) and is pending in the Senate....  [T]he U.S. Sentencing Commission, at FAMM’s urging and with FAMM’s support, has done all it can to reduce drug sentences and make those reductions retroactive for tens of thousands of federal prisoners.  Notably, those who received retroactive relief from the Commission have reoffended at a lower rate than those who served their full sentences.

We recognize that bipartisan consensus and compromise are essential to passing criminal justice reform through the Congress. Because of the hard work of key senators and outside advocates from across the ideological spectrum, we believe that Senator Grassley’s bill would receive more than the 60 votes necessary to invoke cloture and would probably receive closer to 70 votes on final passage.  But in an election year, especially a presidential election year, consensus is not enough. The bar is much higher.  Unanimity, not broad consensus, is required. Without unanimity, any reform bills will require floor time and will be subject to hostile amendments that could significantly weaken them.

Unanimity is lacking today because of a number of factors.  A couple of vocal but mistaken members of Congress insist that any drug sentencing reform will endanger the public, an election-year fearmongering tactic that has no basis in fact. There is also strong disagreement about whether to include minimum criminal intent requirements (“mens rea”) in any final reform bill.  House Judiciary Chairman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) support broad mens rea protection; the White House and most Democrats strongly oppose it.  The congressional calendar presents an equally daunting challenge.  We are in June of an election year.  The Senate only plans to be in session for roughly 40 days between now and the November election....

For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive.  Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice.  The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.

Split en banc Ninth Circuit tries its level best to sort through what Freeman means for crack guideline retroactivity eligibility

This Courthouse News Service article, headlined "Ninth Circuit Tackles Sentencing Disparities," does a nice job explaining the context and particulars of the ruling on a Ninth Circuit en banc court yesterday in US v. Davis, No. 13-301335 (9th Cir. June 13, 2016) (available here). Here are snippets from the press reporting:

Davis pleaded guilty to distributing at least 170.5 grams of crack cocaine in 2005. U.S. District Judge Ronald Leighton, a George W. Bush appointee, sentenced Davis on the higher end of the 188- to 235-month federal guidelines range a year later.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity ratios between crack and powder cocaine down to 18-to-1. The U.S. Sentencing Commission passed an amendment the following year that would allow more than 12,000 drug offenders — 85 percent of whom were black — to apply for retroactive relief. But prosecutors claimed that Davis waived his right to contest his sentence when he signed his plea agreement back in 2005.

After losing two rounds of appeals, Davis notched a small courtroom victory that may help hundreds who received disproportionate sentences. In addressing Davis's case, the San Francisco-based Ninth Circuit Court of Appeals tried to settle a controversy that has raged since the Supreme Court's uncertain conclusion five years ago in Freeman v. United States, which did not clearly define whether defendants could be eligible for retroactively reduced sentences if they pleaded guilty under guidelines that were subsequently reduced.

Although five justices agreed that the appellant in that case should receive reconsideration of his sentence, only four concurred on the lead opinion. Four judges dissented, and Justice Sonia Sotomayor wrote a special concurrence. This left lower courts to puzzle over whether Sotomayor had broken the tie. "To say that Freeman divided the court would be an understatement," U.S. Circuit Judge Richard Paez wrote for a divided 11-judge panel in Monday's majority opinion. "Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence."...

Davis has received a fresh opportunity to reduce his sentence, but this does not guarantee that the district judge will grant him relief. Jones Day attorney Nathaniel Garrett, who represents Davis, said in a phone interview that his client's recommended sentence under the federal guidelines should drop dramatically when it returns to the lower court. Garrett noted sentencing guidelines without the 100-to-1 crack-to-powder disparity would range between 78 and 97 months in prison, and Davis already has served 143 months behind bars.

The U.S. Sentencing Commission noted two years ago that at least 71 applications for sentence reductions have been denied because of plea agreements like the one Davis signed, but Garrett believes his client's case would open the way for others to find relief. "What we don't know is how many individuals are in prison who haven't applied because the courts told them that they can't," he said.

Nancy Talner, a senior staff attorney for the American Civil Liberties Union's Washington state affiliate, said in a phone interview that the opinion underscores "how unfair the old crack-cocaine sentencing was."...

In a concurring opinion, U.S. Circuit Judge Morgan Christen agreed that Davis deserved the opportunity to reduce his sentence, but quibbled about how courts should interpret plurality decisions with no clear victors. The majority opinion leaves the possibility open to take dissenting opinions into account, but Christen thought that this could sow more confusion.

"This is not to say that dissents serve no purpose," Christen wrote. "They can and should be read to provide context and a deeper understanding of the court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision."

Dissenting Judge Carlos Bea would have rejected Davis's effort entirely. "The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis," he wrote.

Defense attorney Garrett predicted, however, that the majority's "reasoned and thoughtful and thorough" opinion would serve as a guide for other circuit judges who have struggled to interpret the Supreme Court's plurality decisions.

Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences

Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.  Here are a few posts from eight years ago on this blog on that topic:

• A retroactive litmus test on leading Democratic candidates
• Seeking to clear up Clintonian confusion on crack retroactivity
• More questions about Clinton's opposition to crack guideline retroactivity
• Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
• Exposing the (racist?) hypocrisy of Clintonian speeches without solutions

I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:

Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.

A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.

Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....

Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....

On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.

A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.

The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.

The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.

As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

• Sentencing Reform And Corrections Act Section By Section

• Sentencing Reform And Corrections Act Summary

Here ais the full text of the summary document:

• Reforms and Targets Enhanced Mandatory Minimums for Prior Drug Felons: The bill reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provision, but it allows those enhanced penalties to be applied to offenders with prior convictions for serious violent and serious drug felonies. 

• Broadens the Existing Safety Valve and Creates a Second Safety Valve: The bill expands the existing safety valve to offenders with more extensive criminal histories but excludes defendants with prior felonies and violent or drug trafficking offenses unless a court finds those prior offenses substantially overstate the defendant’s criminal history and danger of recidivism. The bill also creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum. But defendants convicted of serious violent and serious drug felonies cannot benefit from these reforms.

• Reforms Enhanced Mandatory Minimums and Sentences for Firearm Offenses: The bill expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing. The bill also raises the statutory maximum for unlawful possession of firearms but lowers the enhanced mandatory minimum for repeat offenders.

• Creates New Mandatory Minimums for Interstate Domestic Violence and Certain Export Control Violations: The bill adds new mandatory minimum sentences for certain crimes involving interstate domestic violence and creates a new mandatory minimum for providing weapons and other defense materials to prohibited countries and terrorists.

• Applies the Fair Sentencing Act and Certain Sentencing Reforms Retroactively

• Provides for Prison Reform based on the Cornyn-Whitehouse CORRECTIONS Act: The bill requires the Department of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs. Eligible prisoners who successfully complete these programs can earn early release and may spend the final portion (up to 25 percent) of their remaining sentence in home confinement or a halfway house.

• Limits Solitary Confinement for Juveniles in Federal Custody and Improves the Accuracy of Federal Criminal Records

• Provides for a Report and Inventory of All Federal Criminal Offenses

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE:  The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"

Regular readers know I often note and express respect for the work and writings of both former federal prosecutor Bill Otis, who now writes most regularly at Crime & Consequences, and Julie Stewart, who is the President and Founder of Families Against Mandatory Minimums.   Today I must note and express amazement at the concerted efforts of one of these two taking on the other: Julie Stewart has this notable new Reason commentary headlined "The Former Prosecutor Who Consistently Gets Criminal Justice Reform Wrong: Former prosecutor Bill Otis has been mistaken over and over again when advising legislators against reducing drug sentences."  Here are excerpts mostly from the start and end of the piece:

No one expects our elected representatives to be experts in every area of public policy. At the same time, we have every right to expect that our representatives will consult policy analysts and experts who know what they're talking about, not someone who has been proven wrong time and time again. In the world of criminal justice, that someone is former federal prosecutor and Georgetown Law adjunct William Otis.

Over the past two decades, Bill Otis has become the Paul Ehrlich of criminal sentencing reform.  He is always certain in his convictions and nearly always wrong.  Moreover, like Ehrlich, Otis likes to scare the public with predictions of certain and impending doom, and he is immune to feelings of embarrassment or humiliation despite being proven spectacularly wrong over and over again....

[W]hereas Ehrlich saw overpopulation as the culprit, Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing.  Indeed, every time Congress or the U.S. Sentencing Commission has considered even mild sentence reductions over the past two decades, Otis has gone full Chicken Little.  He has been wrong every time....

The nationwide drop in crime and prison crowding should be celebrated.  Less violent crime means fewer murder victims, fewer robbery victims, and fewer assault victims. Smaller prison populations means savings for taxpayers and more money to spend on what actually does reduce crime — community policing and supervision practices like "short, swift, and certain."  None of these gratifying results would have been possible if Otis's theory were correct — or if any lawmakers outside the Beltway had heard of Otis and took his views seriously.  While Otis has been consistently wrong, thankfully lawmakers have ignored him....

Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act."  When the U.S. Sentencing Commission lowered the crack guideline and made it retroactive in accord with the FSA, Otis predicted it would lead to an increase in crime....  On his blog, Otis cranked up the fear machine. He predicted "misery" when "thousands of crack dealers" would be "put back on the street prematurely" to terrorize their communities.

Fortunately for those of us concerned about public safety, Otis was wrong again — amazingly wrong.  Since passage of the FSA, the crime rate, the prison population, and crack usage are all down!  It bears repeating.  Otis said the changes would cause "misery" and "inevitably lead to more crime."  Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs....

Otis is impervious to facts and evidence.  He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third.  Otis will say, as he does in National Review, that the movement for sentencing reform "is strictly interest-group — and billionaire — driven, inside-the-Beltway," which would be fine if you did not already know that the reform movement began in the states and is being promoted in Washington, DC by insiders like Senators Ted Cruz (R-Tx.), Rand Paul (R-Ky.), and Mike Lee (R-Utah).

Otis's amazing record of wrongness would be interesting and perhaps even funny if he, like fellow fear-peddler Paul Ehrlich, were exiled from the world of rational public policy making.  But media reports have suggested that some members of Congress actually listen to Otis.  If that's true, then we really do have a good reason to be scared.

Yowsa.   Because I consider both Julie Stewart and Bill Otis to be personal friends, I am going to be trying hard to stay out of this sentencing sparring.  But I am also going to try to report fairly on any rounds of this fight, and thus will be quick to post any response that Bill Otis provides in his own defense in the days ahead. 

UPDATE:  Bill Otis has a response up at Crime & Consequences: Are Sentencing "Reformers" Getting Worried?.  Here is a snippet from Bill's introduction to his brief substantive refutation of points made by Julie Stewart:

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points. Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart. (If she seeks a live debate with me, that would be another matter).

I'm quite sure she is sincere. But, for reasons stated in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

District Judge struggles with impact of reduced guidelines for (long-ago) kingpin crack dealer

NPR has this notable new story about a notable request by a notable federal crack offender seeking a reduced sentence based on the new reduced crack guidelines.  Ths piece is headlined "Notorious Cocaine Dealers' Release Requests Test New Sentencing Guidelines," and here are excerpts:

A longtime federal judge struggled Monday over what constitutes justice for members of one of Washington, D.C.'s most notorious drug rings. Senior U.S. District Judge Royce C. Lamberth pressed a public defender about the fate of Melvin Butler, a man who helped flood the city with cocaine that contributed to waves of violence in the late 1980s.

"You're saying that I can't consider the fact that he was one of the biggest drug dealers in the history of our city?" the judge asked. "Congress has tied my hands and I can't consider that?"

The issue arrived in a spotless second-floor room in the federal courthouse on a request from Butler, now 52, for a sentence reduction that would allow him to leave prison in November, after spending half of his life behind bars.

Butler landed in federal custody on April 28, 1989 — so long ago that most of his court records are lost somewhere in storage. Butler, based in California, was a top associate of Rayful Edmond III, Washington's most infamous drug kingpin. The two men allegedly connected at a heavyweight boxing match in Las Vegas in 1987. Two years later, their trial riveted the country. Officials outfitted the courtroom with bulletproof glass and flew Edmond in each day from a lockup in Quantico, Va.

Butler had initially been sentenced to life in prison, Judge Lamberth pointed out, as "one of the two top ringleaders" of a gang that made more than $1 million a week. But the judge who presided over the case, and died in 1997, later reduced the sentence. Now, Butler and his lawyer are trying to shave off more time using a process the U.S. Sentencing Commission approved last year for drug offenders to secure early release from prison.

"I recognize this man's stature and what happened in the '80s," said Assistant Federal Public Defender Dani Jahn. "He's now 52 years old. He's not the person that he was. This is a very lengthy sentence." Jahn said that if Butler were sentenced under laws in place now, he'd face far less time. And, she said, if the judge refuses to grant the request, Butler will still win release in 2017, having served his full term. She pointed out that Butler will remain under supervised release, subject to sanctions if he breaks the law again. "These guys have everything to lose by screwing up when they get out," Jahn said, adding that appearing before Judge Lamberth under those circumstances "would not be a good experience."...

Another member of the Edmond drug gang, lower down on the ladder, James Jones, also is seeking a sentence reduction. Now 58, Jones is scheduled to leave prison in February 2018. But he too wants to take advantage of a change in the sentencing guidelines that would allow him to go free in November with the judge's permission. Thousands of prison inmates across the country already have won the ability to leave prison early under that mechanism.

But in his courtroom, across from the U.S. Capitol, Judge Lamberth expressed reservations. "It still gives me pause what Congress is doing," the judge said. "I would have thought the top drug kingpins in the country wouldn't be the beneficiaries of what we're trying to do here."

The questions of crime and punishment are particularly timely now as the Obama administration has prioritized sentencing reform and clemency initiatives that would deliver shorter sentences and other relief to nonviolent drug criminals. Lawmakers from both political parties are preparing to advance their own proposals for overhauling the criminal justice system in September....

But the question before Judge Lamberth, and others deliberating notorious cases across the country, is what standards to consider for criminals involved at higher levels in violent drug gangs. The judge said he recalled Edmond testifying that many of his lieutenants wielded firearms. Lamberth also asked about an apparently unresolved murder allegation involving Jones dating to the 1980s. But the prosecutor, the public defender and the probation officer couldn't remember back that far, so they asked for time to research the question.

Prosecutor Barry Wiegand said he didn't want to opine about changes in criminal justice policy. But he said he lived several blocks away from what used to be a drug market under Edmond's control. "I wouldn't presume as an assistant United States attorney to be privy to the wisdom of Congress," he said. "I observe that 31- and 32-year sentences are long. I observe that a lot of places aren't what they used to be. What we did in the 1980s and 1990s was the right thing to do, and we did it well."

US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act

As reported in this official USSC news release, today "the United States Sentencing Commission submitted to Congress its report assessing the impact of the Fair Sentencing Act of 2010, which among other things reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine." Here are highlights of an encouraging report via the news release:

Chief Judge Patti B. Saris, Chair of the Commission, said: “We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine. All this occurred while crack cocaine use continued to decline.”

To assess the impact of the FSA, the Commission analyzed external data sources and undertook statistical analyses of its own federal sentencing data spanning before and after the enactment of the FSA. Among other things, the study shows that:

• Many fewer crack cocaine offenders have been prosecuted annually since the FSA, although the number is still substantial;

• Crack cocaine offenders prosecuted after the FSA are, on average, about as serious as those prosecuted before the FSA;

• Rates of crack cocaine offenders cooperating with law enforcement have not changed despite the reduction in penalties; and,

• Average crack cocaine sentences are lower, and are now closer to average powder cocaine sentences.

The full report, which runs almost 100 pages including all its materials is available at this link. The USSC's website now has this terrific page with various report-related materials and links for easy consumption of all the data in the report.

Prez Obama commutes sentences for 46 federal drug prisoners (with a video message)

Neil Eggleston, Counsel to the President, has this new White House Blog posting titled "President Obama Announces 46 Commutations in Video Address: 'America Is a Nation of Second Chances'." Here is the text of the posting, with links worth following:

As a former Assistant U.S. Attorney and criminal defense attorney, I'm well acquainted with how federal sentencing practices can, in too many instances, lead nonviolent drug offenders to spend decades, if not life, in prison.  Now, don't get me wrong, many people are justly punished for causing harm and perpetuating violence in our communities.  But, in some cases, the punishment required by law far exceeded the offense.

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.  Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

In a video released today, the President underscored the responsibility and opportunity that comes with a commutation.

The President also shared his thoughts in a personal letter written to each of the 46 individuals receiving a commutation today.

In taking this step, the President has now issued nearly 90 commutations, the vast majority of them to non-violent offenders sentenced for drug crimes under outdated sentencing rules. 

While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.  Tune in tomorrow as the President shares additional thoughts on how, working together, we can bring greater fairness to our criminal justice system while keeping our communities safe in an address to the NAACP.

A list of the 46 lucky individuals receiving clemency today can be found here. A too quick review of the list suggests that the vast majority of those receiving clemency today were convicted of crack offenses, though I did notice a couple of marijuana offenders in the group. 

Great coverage of crack crimes and punishments via Al Jazeera America

I am pleased (and a bit overwhelmed) by this huge new series of stories, infographics, pictures, personal stories concerning crack crimes and punishment put together by Al Jazeera America.  Here are links to just some parts of the series:

Waiting on a fix: Legal legacy of the crack epidemic: In the 1980s, the US went to war on crack. Thirty years on, judiciary is still hooked on unfair and unequal sentencing

Documenting the ravages of the 1980s crack epidemic: Renowned documentary photographer Eugene Richards recorded the brutal realities facing communities affected by crack

'Life without parole is a walking death': Andre Badley, imprisoned in 1997 for dealing crack, could spend his life behind bars while bigger dealers go free.

A rush to judgment: In 1986, lawmakers wrote new mandatory crack cocaine penalties in a few short days, using the advice of a perjurer.

Federal judge urges passage of the Smarter Sentencing Act because of "Prisoners I Lose Sleep Over"

The title of this post is drawn from the headline given to this recent commentary piece in the Wall Street Journal authored by senior US District Judge Michael Ponsor. Here are excerpts:

The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor.  The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans — including federal judges like me — have struggled with for more than two decades.

I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge.  My pride in our constitutional system runs bone deep: No system of law has ever existed that tries so hard to be truly fair.  I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases....

For years, I could recite the mandatory terms for crack in my sleep: five years for five grams, 10 years for 50 grams, 20 years for 50 grams with one prior conviction, life without parole for 50 grams with two priors — no discretion, no consideration of specific circumstances.  These mandatory terms (unless the defendant cooperated by implicating others) were the same for low-level couriers, called mules, as for high-echelon drug lords.

By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive.  And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.

The Smarter Sentencing Act would reduce 20-year mandatory sentences to 10, 10-year sentences to five, and five-year sentences to two years.  Increased numbers of offenders with very modest criminal records would not face mandatory sentences at all.  If adopted, the law would also permit thousands of prisoners to seek reduction of their prison terms to bring them in line with the Fair Sentencing Act.  None of these changes would reduce the power of judges to slam the really bad actors. But they would permit judges to do what they are paid to do: use their judgment.

Our vast prison apparatus is too costly, but more important, it is unworthy of us as a free people.  This new statute is well named — now is the time for smarter sentencing.

Some recent related posts concerning Smarter Sentencing Act:

• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Another notable GOP member of Congress advocating for federal sentencing reform
• Conservative group ALEC joins the growing calls for sentencing refom
• Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
• Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
• Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
• Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
• Effective Heritage analysis of federal MMs and statutory reform proposals 

Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

I am quite pleased and excited to see that yesterday the Smarter Sentencing Act (SSA)received significant Republican support within in the Senate Judiciary Committee, with Senators Senators Mike Lee (R-Utah), Jeff Flake (R-Arizona), and Ted Cruz (R-Texas) voting in support of significant reforms to modern drug sentencing rules. Given that there are three other Tea Party Caucus Senators (Jerry Moran (R-Kansas), Rand Paul (R-Kentucky), and Tim Scott (R-South Carolina), I am relatively hopeful that establishment Republicans may not be able to prevent the SSA's passage in the full Senate.

Unfortunately for supporters of drug sentencing reform, establishment Republicans are in control in the House of Representatives, and I assume House Speaker John Beohner and/or other House leaders could quash the SSA if an whenever they might want. But what I do not know, either practically or politically, is whether establishment Republicans in the House want to kill the SSA and/or whether Tea Party players in the House are as eager to see this bill become law as some in the Senate were.

Adding to the practical and political intrigue is the intriguing fact that, as explained in this article, there are now some new mandatory minimums travelling with the SSA thanks to an amendment by the establishment Republicans on the Senate side:

The Senate Judiciary Committee approved the Smarter Sentencing Act of 2013 by a wide margin Thursday, taking a major step toward reducing mandatory drug-related sentences. Amendments attached to the bill, however, would also establish new mandatory sentences for sex crimes, domestic violence and terrorism.

The bill is sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Sen. Mike Lee, R-Utah, and has significant bipartisan support. Its primary aim is to allow greater sentencing flexibility and would reduce various drug-related mandatory minimums from five, 10 and 20 years to two, five and 10 years. It would also allow prisoners with crack cocaine convictions to have their punishments revisited in light of the 2010 law that lessened penalties for the drug.

In a frustrating blow to some reformers, committee members adopted three amendments from Sen. Chuck Grassley, R-Iowa, that would add the new minimum sentences. Committee members voted 15-3 to establish a mandatory minimum sentence of five years for federal sexual abuse crimes and 15-3 to created a 10-year mandatory minimum sentence for interstate domestic violence resulting in death of the victim.

Though I have a general disaffinity for any new mandatory minimums, I am ultimately pleased by additions to the SSA that Senator Grassley added if they will aid passage of the bill. The drug mandatory reductions in the amended SSA would impact tens of thousands of federal cases every year, whereas the new mandatory minimums would likely impact only a few dozen.  I am hopeful that the added minimums might make it that much easier for establishment Republicans to vote for the SSA and for House leaders to bring the bill up for a vote.  (My gut instinct is that perhaps as many as 300 members of the full House would vote for the amended version of the SSA if it gets to a floor vote, but I remain worried it might never do so because of the establishment Republican forces eager to keep this part of the federal government big.) 

Some recent and older posts about the "new politics" of sentencing reform:

• Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
• Could "momentum for sentencing reform [now] be unstoppable" in the federal system?
• "With Holder In The Lead, Sentencing Reform Gains Momentum"
• Notable inside-the-Beltway discussion of modern sentencing politics
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
• "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
• Another notable GOP member of Congress advocating for federal sentencing reform
• Conservative group ALEC joins the growing calls for sentencing refom
• GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives