Tuesday, August 20, 2013

Revised Post (revised yet again) upon request

Regular readers know all about the controversy and pending en-banc litigation engendered by a decision rendered three months ago by a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here).....

ADDITIONAL ORIGINAL MATERIALS IN REST OF THIS POST REMOVED upon reasonable requests by lots of reasonable folks for reasonable reasons, in my judgment....

August 20, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Monday, August 19, 2013

"Crack Cocaine, Congressional Inaction, and Equal Protection"

The title of this post is the title of this new paper on SSRN authored by Paul Larkin Jr. and which appears to be critical of the Sixth Circuit's (now vacated) panel decision in US v. Blewett. Here is the abstract:

For decades, scholars and courts have debated whether the Anti-Drug Abuse Act of 1986 discriminates against African Americans by imposing far stiffer punishments for trafficking in crack cocaine than in its powdered form.  The academy has generally concluded that the federal crack cocaine sentencing laws are racially discriminatory, while the federal courts have almost uniformly rejected the same argument. Three years ago Congress, via the Fair Sentencing Act of 2010, addressed the issue by reducing, without eliminating, the sentencing disparity. Recently, the U.S. Court of Appeals for the Sixth Circuit in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), concluded that the 2010 statute would be unconstitutional if it were not applied retroactively. The Blewett case forces this debate back into the political arena.

The Sixth Circuit misapplied equal protection law.  Rather than ask whether Congress refused to apply the Fair Sentencing Act retroactively for a discriminatory purpose, the court concluded that Congress’s decision to adopt a prospective-only statute was tantamount to readoption of Jim Crow.  Settled law, however, requires proof of discriminatory intent.  Moreover, Congress’s refusal to adopt retroactive legislation cannot violate the Due Process Clause.  The clause applies only to positive law, so Congress cannot violate the clause by not enacting legislation.  Finally, the Sixth Circuit failed to consider the effect of strict enforcement of the drug laws on the innocent residents of communities where crack trafficking occurs.  It may be unwise to continue to imprison crack offenders for the full length of their prison terms imposed under the strict provisions of a now-amended law, but a mistaken decision is not invariably an unconstitutional one.

Related posts on Blewett:

August 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Friday, August 02, 2013

"Sentencing Reform Starts to Pay Off"

The title of this post is the headline of this (too short) new New York Times editorial. Here is the text:

In 2010, Congress passed the Fair Sentencing Act, which reduced the vast disparity in the way the federal courts punish crack versus powder cocaine offenses. Instead of treating 100 grams of cocaine the same as 1 gram of crack for sentencing purposes, the law cut the ratio to 18 to 1. Initially, the law applied only to future offenders, but, a year later, the United States Sentencing Commission voted to apply it retroactively. Republicans raged, charging that crime would go up and that prisoners would overwhelm the courts with frivolous demands for sentence reductions. Senator Charles Grassley of Iowa said the commission was pursuing “a liberal agenda at all costs.”

This week, we began to learn that there are no costs, only benefits. According to a preliminary report released by the commission, more than 7,300 federal prisoners have had their sentences shortened under the law. The average reduction is 29 months, meaning that over all, offenders are serving roughly 16,000 years fewer than they otherwise would have. And since the federal government spends about $30,000 per year to house an inmate, this reduction alone is worth nearly half-a-billion dollars — big money for a Bureau of Prisons with a $7 billion budget. In addition, the commission found no significant difference in recidivism rates between those prisoners who were released early and those who served their full sentences.

Federal judges nationwide have long expressed vigorous disagreement with both the sentencing disparity and the mandatory minimum sentences they are forced to impose, both of which have been drivers of our bloated federal prison system. But two bipartisan bills in Congress now propose a cheaper and more humane approach. It would include reducing mandatory minimums, giving judges more flexibility to sentence below those minimums, and making more inmates eligible for reductions to their sentences under the new ratio.

But 18 to 1 is still out of whack. The ratio was always based on faulty science and misguided assumptions, and it still disproportionately punishes blacks, who make up more than 80 percent of those prosecuted for federal crack offenses. The commission and the Obama administration have called for a 1-to-1 ratio. The question is not whether we can afford to do it, but whether we can afford not to.

As my many blog posts highlight, there is a lot more which can and needs to be said concerning all the topics that this editorial touches upon. But I am very pleased to see that the Times is noticing the impact of recent federal sentencing reforms and call for more.

August 2, 2013 in New crack statute and the FSA's impact, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (4) | TrackBack

Tuesday, July 30, 2013

New USSC data on implimentation and impact of retroactive crack guidelines after FSA

I just noticed on the US Sentencing Commission's website this new data report carrying the title "Preliminary Crack Retroactivity Data Report; Fair Sentencing Act."  This report, dated July 2013, appears to be the latest accounting of who has (and has not) received the benefit of retroactive application of the 2011 amendments to the federal sentencing guidelines for crack offenses which implemented the new 18-1 crack/powder ratio that Congress created via the Fair Sentencing Act of 2010.

Based on the information reflected in Tables 1 amd 8 of this data report, it appears that just over 7300 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA-inspired crack guidelines being made retroactive.  Significantly, this average reduction merely lowered the average crack sentence from roughly 12.5 years to just over 10 years for the group receiving sentence reductions; this means that even the new-average-lowered sentence for crack offenses were still significantly higher that the average sentences imposed for any other federal drug crimes.

For those eager to gauge the potential economic impact of FSA retroactivity, it appears that the retroactive guidelines as implemented has now saved almost 16,000 cumulative years of federal imprisonment, with a consequent savings to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration).  And for those concerned about racial sentencing dynamics, Table 5 of this data reports that more than 85% of those benefiting from reduced crack sentences have been black prisoners, demonstrating once again the historically racialized reality of federal crack prosecutions.

As I have said in prior posts, if those defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs. And it those defendants do not learn the error of their law-breaking ways, I both expect and hope they will really get the sentencing book thrown at them if ever up for sentencing again.

July 30, 2013 in Data on sentencing, Detailed sentencing data, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, July 29, 2013

New Slate pitch for Prez to use clemency powers to address crack sentencing disparities

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some ideas expressed in this recent post concerning the President Obama's words and (lack of) actions now find expression in this new Slate commentary.  Here is how the piece, co-written by me and Harlan, starts and finishes:

President Barack Obama, commenting last week on George Zimmerman’s acquittal in Trayvon Martin’s death, remarked on “a history of racial disparities in the application of our criminal laws — everything from the death penalty to enforcement of our drug laws.”  A few months earlier, Attorney General Eric Holder similarly lamented new government data suggesting that even today “black male offenders” are sentenced to federal prison terms “nearly 20 percent longer than those imposed on white males convicted of similar crimes.”  These statements reveal that our nation’s first African-American president and first African-American attorney general are aware of serious racial discrimination in the administration of our nation’s criminal laws.  The question is what they plan to do about it?

Neither the president, nor his attorney general, has followed-up or suggested a fix for the problem.  Yet with one signature, Obama could make a remarkable difference: He could use his constitutional powers to commute the sentences of thousands of disproportionately black inmates serving excessive prison terms for crack cocaine offenses.  Put bluntly, rather than dropping occasional comments about high-profile criminal-justice incidents with racial overtones, both the president and the attorney general should make a focused and sustained effort to redress longstanding criminal justice disparities....

Back in 2009, Holder famously described us as a “nation of cowards” in dealing with race issues.  And while both Holder and the president seem to have the courage to speak about high-profile cases, they have yet to show the fortitude and focus needed to turn high-profile controversies into constructive opportunities.  If President Obama is genuinely committed to addressing racial disparities in the enforcement of our criminal laws, he can grant clemency today, and then make a sustained commitment to addressing these issues throughout his second term.  If he fails to do so, he can, justifiably, be called our nation’s “Coward-in-Chief” where race is concerned.

July 29, 2013 in Clemency and Pardons, New crack statute and the FSA's impact, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (33) | TrackBack

Thursday, July 11, 2013

Full Sixth Circuit grants en banc review in Blewett

A mere days after the Sixth Circuit panel in the Blewett case (which concerns possible retroactive relief for some crack defendants) decided not to alter its original opinion (details here), the full Sixth Circuit today entered this order:

ORDER filed granting petition for en banc rehearing filed by [AUSA] Ms. Candace G. Hill, to reinstate appeals. The previous decision and judgment of this court is vacated, the mandate is stayed. The Clerk has directed the parties to file supplemental briefs. Final briefing will be concluded on August 29, 2013. These cases will be argued before the en banc court on October 9, 2013, 1:30 P.M., EST.

This is not a big surprise, and I think it likely means that the full Sixth Circuit is not too keen on the equal protection arguments used by the Blewett panel.  I fear that the full Sixth Circuti might not also be too keen on the Eighth Amendment arguments I put forward in this case late last month (details here), but that is not likely to deter me from filing additional papers concerning my Eighth Amendment ideas come August. I also may ask the Sixth Circuit for argument time (through I am not especially confident that anything which transpires at oral argument in this kind of case is going to move the opinions of many of the judges).

 Related posts on Blewett:

July 11, 2013 in New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (9) | TrackBack

Tuesday, July 09, 2013

After supplemental Blewett briefing, Sixth Circuit panel stands pat

As regular readers likely recall, almost two month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  And last month, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  I reported on the amicus brief covering Eighth Amendment issues that I wrote and filed on behalf of NACDL via this post, and I have been overdue in uploading these supplemental filings sent in by the parties:

Thanks to the fact that I am now in the case via my amicus efforts, I received via the automatic notification system this report on activity in the case this week:

Activity has occurred in the following cases: 12-5226 [USA v. Cornelius Blewett], judge order filed

ORDER filed. The judges of the panel adhere to their respective original opinions. The panel directs that the responses of the parties and the amicus brief of the National Association of Criminal Defense Lawyers be made part of the record in this case. Gilbert S. Merritt, Boyce F. Martin , Jr., and Ronald Lee Gilman, Circuit Judges.

This order is not especially surprising, but it is still noteworthy. And it now puts the onus on other judges of the Sixth Circuit to take up this case en banc within the next month, as the Sixth Circuit rules provides that "[a]ny active judge or any member of the panel whose decision is the subject of the rehearing may request a poll within 14 days from the date of circulation of the petition and the panel's comments. If a poll is requested, 14 days are allowed for voting." In other words, within the next 28 days, we should know for sure if the full Sixth Circuit will rehear the Blewett case or if instead the feds will have to ask SCOTUS to review the consequential work of the Blewett panel. Related posts on Blewett:

July 9, 2013 in New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0) | TrackBack

Friday, June 28, 2013

My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett

As regular readers likely recall, a little over a month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In my first post about the Blewett ruling, I noted that I was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA." 

A couple of weeks ago, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  Ever interested in sharing my perspectives in full glossy detail, I have spent the last few days finalizing an amicus brief on behalf of NACDL explaining my Eighth Amendment thinking and that brief was filed with the Sixth Circuit (and with the consent of the parties) this afternoon.

For those following the Blewett case or interested in FSA retroactivity arguments, I recommend reading my 15-page filing in full (and I have provided the full document for downloading below).  Here are a few passages that capture some of the themes to be found in the brief:

Through passage of the Fair Sentencing Act of 2010 (FSA), Congress significantly reduced the sentences mandated and recommended for all crack offenses (1) by raising by over 500% the quantity of crack triggering five- and ten-year minimum sentences, and (2) by ordering the U.S. Sentencing Commission to reduce all crack guideline sentences through emergency amendments to be promulgated “as soon as practicable.”  See Sections 2 & 8 of FSA.  As the Supreme Court has explained, this landmark legislation reflected Congress’ formal response to “the Commission and others in the law enforcement community strongly criticiz[ing] Congress’ decision to set” crack sentences so high relative to powder cocaine sentences and Congress having “specifically found in the Fair Sentencing Act that [each pre-FSA crack] sentence was unfairly long.”  Dorsey v. United States, 132 S. Ct. 2321, 2328, 2333 (2012).  In other words, passage of the FSA is a clear, bold and unmistakable legislative statement by our nation’s representatives that pre-FSA crack sentences were unnecessarily severe, unfair and excessively long.

While the text of the FSA provides the clearest objective evidence of the national consensus against the extreme pre-FSA crack sentencing provisions, federal practices, reflected in the work of other branches both before and after the FSA’s passage, confirm that the now-repealed 100-1 crack/powder cocaine sentencing scheme has long been rejected by all significant federal sentencing decision-makers....

It is not merely notable, but of great constitutional import, that virtually every federal criminal justice actor has in virtually every possible way acted in the last half-decade to demonstrate and vindicate the consensus view that pre-FSA crack sentences were excessively long.  Significantly, in recent Eighth Amendment cases such as Miller and Graham and Kennedy and Roper and Atkins, the Supreme Court found unconstitutional extreme sentences that were still being vigorously defended by the jurisdictions which imposed them.  Here, in sharp contrast, not only have the pre-FSA crack sentences imposed on the Blewetts been repealed by Congress, it is near impossible to find a single modern federal criminal justice decision-maker who will voice any substantive defense of the pre-FSA 100-1 crack sentencing structure.

Download Blewett Amicus NACDL

Related posts on Blewett:

June 28, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (13) | TrackBack

Tuesday, June 25, 2013

"Equal justice: An appeals court wisely rules on drug sentencing"

The title of this post is the headline of this notable new editorial appearing in today's Pittsburgh Post-Gazette discussing and praising last month's Sixth Circuit ruling in Blewett (basics here).   Here are excerpts:

In the nation's long, costly and practically futile war on drugs, severe sentencing disparities between crack and powder cocaine stand out as an egregious and misguided policy that was stoked by near-hysteria.

Convinced that crack cocaine was 100 times more dangerous than powder cocaine, lawmakers in 1986 enacted a notorious 100-to-1 sentencing scheme that levied the same prison sentence for possessing 5 grams of crack as it did for 500 grams of powder.

A 2010 law, the Fair Sentencing Act, restored some sanity to federal sentencing laws by narrowing considerably the disparities in sentencing between crack and powder. Unfortunately, the law did not spell out whether the new standards applied retroactively to people who were sentenced before it was enacted.

This month, however, a federal appeals court in Cincinnati ruled correctly that those sentenced for crack cocaine violations before the 2010 law was enacted can be resentenced under the new law. The cleanest and best solution would be for Congress to amend the Fair Sentencing Act to make it fully retroactive.

Until then, the ruling by the appeals court opens the door for thousands of inmates to ask federal judges to shorten their prison sentences. It expands a U.S. Supreme Court ruling last year that applied the Fair Sentencing Act to people who committed crack cocaine crimes shortly before more lenient penalties took effect in 2010.

It's time to undo fully these unjust and irrational sentences, which treated powder cocaine users -- who were typically white and often affluent -- far more leniently than the mostly black and poor users of crack cocaine.

Related posts on Blewett:

June 25, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (21) | TrackBack

Friday, June 14, 2013

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA."  In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.

I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”).  The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.

Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?

Related posts on Blewett:

June 14, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

Monday, June 03, 2013

As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling

As covered via a number posts on this blog, a split Sixth Circuit panel decided in Blewett, based on Equal Protection principles, that the new lower statutory mandatory-minimum thresholds for crack offenses established in the Fair Sentencing Act are applicable in motions to reduce otherwise-final sentences for incarcerated offenders.  (The Blewett panel ruling was first discussed in this post, and further here and here.) 

As predicted in these posts, the federal government is not happy with this ruling, and late Friday it finally filed a petition for rehearing en banc.  Here is the opening paragraph of the argument section from that filing, which can be downloaded below:

The majority’s holding is legally incorrect, in conflict with prior Sixth Circuit decisions, in conflict with the law of every other circuit, and inconsistent with Dorsey.  Moreover, the effect of the decision will be widespread if it is allowed to stand.  The panel majority’s core reasoning is seriously flawed in multiple respects, but two central errors highlight the need for en banc consideration.  Download Blewett_petition for rehearing

I would be truly shocked if the full Sixth Circuit did not grant this petition for rehearing.  Indeed, in my view the only real procedural questions now are (1) how long will it take the full Sixth Circuit to grant the petition, and (2) what kind of briefing and argument schedule will be set for this important case.  (I would urge the Sixth Circuit to give plenty of time for briefing because I know that a number of public policy groups are likely to be eager to file amicus briefs in this matter.)

As I briefly explained in my first post on Blewett, I think a Fifth Amendment equal protection theory used by the majority in the Blewett panel decision provides a very shaky constitutional foundation for giving the new crack statutory sentences of the FSA retroactive effect.  But I also think, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could provide a more reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

Related posts on Blewett:

June 3, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

Thursday, May 30, 2013

Two weeks later, has there been any significant and noteworthy Blewett blowback?

As first discussed in this post and further here and here, a split panel of the Sixth Circuit two weeks ago handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act's effective date.  This ruling means that still-imprisoned crack defendants sentenced in the two decades before the FSA can now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Right after the ruling there was reasonable and justified speculation that the federal prosecutors would quickly move for the full Sixth Circuit to review and reverse the Blewett decision en banc.  Indeed, I expected that we a petition for rehearing en banc would be filed within a matter of days.  But here it is nearly two weeks later, and I am still awaiting any report of a DOJ en banc filing in response to Blewett.  I believe it is still likely that such a petition will be coming down the pike very soon, but the delay so far now has me wondering and speculating as to whether the feds might just decide to seek summary reversal of Blewett in the US Supreme Court rather than just fight this consequential fight in the Sixth Circuit.

Meanwhile, though I predicted in this post that there could be hundreds, if not thousand, of Blewett claims brought by incarcerated federal crack offenders convicted within the Sixth Circuit, as of this writing I have not seen any reports or evidence of significant efforts by significant numbers of defendants to get some relief from Blewett.  I did find, thanks to Westlaw, a notable ruling by Judge Tarnow in the Eastern District of Michigan granting relief to a defendant based on Blewett in US v. Frost, No. 08–20537–4, 2013 WL 2250768 (ED Mich May 22, 2013), noting that Cecil Frost only now can get resentenced "because the Sixth Circuit Court's ruling in Blewett cures [the] unjust outcome" that precluded his resentencing because he had been sentenced before the effective date of the FSA.

It is hard to assess at this stage whether Frost represents the tip of a large Blewett-resentencing ice berg, or instead that Frost is a rare case involving a defendant and a district judge eager and able to operationalize Blewett quickly.  The question in the title of this post is an effort to seek help from practioners and others to figure out whether and how Blewett blowback might be brewing.

Related posts on Blewett:

May 30, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10) | TrackBack

Tuesday, May 28, 2013

DC Circuit allows suit against US Sentencing Commission for limiting crack relief to go forward

H&WIn an interesting (and ground-breaking?) unanimous panel ruling that should make fans of Henry M. Hart and Herbert Wechsler smile, the DC Circuit today ruling that a crack defendant's civil rights lawsuit against the US Sentencing Commission could go forward. The notable ruling in Davis v. US Sentencing Commission, No. 11-5264 (DC Cir. May 28, 2013) (available here), gets started this way:

Appellant Brian Davis was sentenced to prison for crimes involving powder and crack cocaine before Congress and the Sentencing Commission took steps to reduce the disparity in sentencing ranges between the two.  Unfortunately for Davis, these efforts were directed at crimes involving lesser amounts of cocaine than his.  In a suit that seeks declaratory relief and possibly damages, Davis claims that these efforts violate the Equal Protection Clause because they do not reach his crimes.  This appeal does not take up the merits of Davis’s claims, but their form.  The district court dismissed his suit on the ground that the only relief available to Davis is in habeas.  For the reasons set forth below, we reverse.

I nearly fell out of my desk chair when I read the last word of the last line of this opening paragraph, and the rest of the opinion surprised me as well.  In order to reach its conclusion, the DC Circuit panel (1) had to reverse an established circuit precedent based on intervening Supreme Court rulings and also (2) had to rule that the district court erred when concluding the claim made by Davis against the USSC was “patently insubstantial.”

In the end, because Davis v. USSC is a narrow procedural ruling, it still remains very unlikely Davis will ultimately prevail in his suit, and I also doubt that this ruling today by the DC Circuit will prove to be all that consequential.  Nevertheless, I think for Fed Court fans, as well as sentencing fans, the opinion in Davis v. USSC is today's must-read.

May 28, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Sunday, May 19, 2013

How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....

We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone....

If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.

Related posts on Blewett:

May 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (17) | TrackBack

Saturday, May 18, 2013

"Crackheaded Ruling by Sixth Circuit"

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

Related post:

May 18, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (14) | TrackBack

Friday, May 17, 2013

On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

With thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here). The start of the majority opinion (per Judge Merritt) will highlight for all federal sentencing fans why this ruling is a very big deal:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005.  The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).  As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.”  The Collapse of American Criminal Justice 184 (2011).  He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.

The start of the dissent (per Judge Gilman) will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat.  To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect.  But I have long thought, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

If (dare I say, when) this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate (perhaps via an amicus brief) my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend.

May 17, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Sunday, May 05, 2013

"Retroactivity and Crack Sentencing Reform"

The title of this post is the title of this new paper by Harold Krent now available via SSRN. Here is the abstract:

This article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision in Dorsey v. United States is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may prove pernicious in future cases, whether in dealing with marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only.

Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court inordinately relied on the general savings statute enacted in 1871. Congress enacted that statute not to prevent retroactive decriminalization or diminution in punishment, but to avoid the consequence of abatement of pending prosecutions and penalties that, at common law, followed from alteration of a criminal statute. Congress wished to avoid the bizarre consequence of offenders walking free merely because Congress recodified a law or even increased the punishment for an offense without specifying that prosecutions could continue under the former enactment. In today’s world, the savings statute should be understood more as a default in the face of congressional silence – once it is clear that Congress considered the temporal scope of its action, the presumption disappears.

I next consider whether alternative justifications support a strong presumption for prospective application of any legislative change. I initially turn to the well entrenched norm against retroactive lawmaking. I reject the premise that the conventional reasons against retroactive measures have salience in the context of legislative amelioration of punishment. I then assess two separation of powers concerns that might justify a clear statement rule against retroactive application of congressional leniency. First, I ask whether Congress’s reduction of sentences would interfere with the President’s pardon authority under Article II, and second, whether Congress lacks the power to undo a final decision of the judiciary. The constitutional arguments raise no serious barrier to retroactive application of congressional leniency.

On the other hand, I reject the notion that Congress, in light of equal protection principles, must benefit those who previously committed the offense. To be sure, ignoring the plight of prior offenders at times seems grossly unfair, and Congress from a deterrence perspective lacks any justifiable reason to treat similarly situated offenders so disparately. Nonetheless, I argue that Congress under a retribution rationale can justify the differential punishment scheme and survive equal protection scrutiny.

In short, because there are no compelling policy or constitutional grounds to presume that congressional leniency should apply prospectively only, Congress should be accorded the discretion to determine where to draw the line in determining the proper amount of retribution for those who committed offenses prior to the decriminalization or diminution in punishment. The Court’s decision in Dorsey should have been straightforward – given the directive in the sentencing act to rectify the disparity in sentencing between crack and powdered cocaine offenses as quickly as possible, Congress intended the shortened sentences to apply to all pending cases.

May 5, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, February 12, 2013

DC Circuit works hard to figure out just what Freeman means for guideline retroactivity

An informed and thoughtful reader recommended to me today's interesting rulng by a DC Circuit panel in US v. Epps, No. 11-3002 (DC Cir. Feb 12, 2013) (available here).  The Epps court, in a setting which one judge thought make the case moot, has to unpack the SCOTUS Freeman decision concerning plea agreements and guideline retroactivity. Among other interesting aspects of the case, the panel unpacks the important issue of which SCOTUS opinion controls when the Justices divide 4-1-4 . Here is how the Epps opinion gets started:

In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that the district court is not categorically barred from reducing a defendant’s sentence under 18 U.S.C. § 3582(c)(2) where the defendant entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).  The decision was splintered, however, with the plurality and concurring opinions adopting different reasoning. Prior to Freeman, the district court denied Ricardo Epps’ § 3582(c)(2) motion for a reduction of his Rule 11(c)(1)(C) sentence.  United States v. Epps, 756 F. Supp. 2d 88 (D.D.C. 2010).  Epps appeals, contending that there is no controlling opinion in Freeman and that because the district court (as well as the Rule 11(c)(1)(C) agreement) relied upon the crack-cocaine Guidelines range when determining whether to accept the stipulated sentence, his sentence was imposed “based on” the Guidelines range and the district court was authorized under § 3582(c)(2) to reconsider and reduce his sentence in light of the Sentencing Commission’s reduction of the sentencing range applicable to him.  For the following reasons, we reverse and remand the case to the district court.

February 12, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, December 24, 2012

Latest USSC data on retroactivity of crack guidelines reduced by FSA

I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity."  The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."

Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive.  That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). 

Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons.  The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data. 

Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around.  If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.

December 24, 2012 in Detailed sentencing data, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Tuesday, December 04, 2012

Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratio

The Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 (7th Cir. Dec. 4, 2012) (available here), in response to a defendant's claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel's discussion in Matthews:

On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court’s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. § 3553(a)(6) (instructing district courts to consider whether a sentence results in “unwarranted sentence disparities”).

We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews’s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85, 109 (2007), and Spears v. United States, 555 U.S. 261 (2009). Moreover, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).

December 4, 2012 in Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, June 27, 2012

"Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing"

The title of this post is the headline of this effective new commentary by Nkechi Taifa at the Huffington Post. The piece highlights that the passage of the FSA and the subsequent ruling for defendants in Dorsey hardly makes all well in the federal sentencing world, and it urges President Obama to get in the game.  Here are excerpts:

Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced....

The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing.  First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1.  Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act.  Third, the Commission unanimously agreed to make these changes retroactive....

None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.

The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy.  There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform.  Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.

Professor Mark Osler and former prosecutor Matthew Fass in a recent article [here from the Federal Sentencing Reporter], highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions.  On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial....

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card."  Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades.  The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century.  And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica....

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over.  The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

Regular readers should not be surprised to hear that I think this is a great idea, nor should they be surprised to see this great idea get completely ignored by the powers-that-be in the White House (at least until after this November's election).

June 27, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0) | TrackBack

Thursday, June 21, 2012

Has Justice Scalia won the legislative history war despite losing Dorsey battle?

There is much to say in future posts on future days about the merits and the likely aftermath of the Supreme Court's work in the crack pipeline cases Dorsey and Hill (which I will soon just be calling Dorsey and have already discussed here and here).   But before diving later into matters of substance, I want to make two quick points about SCOTUS method.

First, I want to praise in a hearty, heartfelt way the notable fact that neither opinion in Dorsey uses the word "retroactivity" to describe the issue in the case.  I explained in this post a few months ago why I thought the term "retroactivity" has been lots of (opaque and confusing) meanings and why I did not think the issue in the Hill and Dorsey FSA pipeline cases was properly cast as a retroactivity issue.  I am so very pleased to see that Justices avoid any use of this (loaded?) term in the Dorsey opinions.

Second, I want to spotlight that Justice Breyer's majority opinion in Dorsey makes no real mention of any of the (many) statements of "legislative history" which surrounded the passage of the Fair Sentencing Act.  The parties and amici advocating the interpretation adopted by the majority in Dorsey rightly and effectively cited to lots of helpful legislative history to support its arguments, but none of this history is mentioned in the Court's opinion.  I have to suspect that the majority, knowing that any reliance on legislative history in this context might prompt a sharp retort from Justice Scalia (or other dissenters), decided it could and should set forth support for its ruling without reengaging any broader debates over the consideration of legislative history in statutory interpretation.

June 21, 2012 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

In 5-4 opinion, defendants prevail in crack pipeline cases via the FSA

As I hoped and expected, today brought us not only a pro-defendant Sixth Amendment ruling from the Justices in Southern Union (basics here), but also a pro-defendant statutory ruling the the crack pipeline cases of Hill and Dorsey.  Specifically, as per the early SCOTUSblog report, we have this outcome:

We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases.  The opinion is by Breyer.  The Seventh Circuit is vacated and remanded.  The vote is 5-4.  Justice Scalia dissents, joined by the Chief and Alito and Thomas.

The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes.  Dorsey and Hill have the more traditional line-up that we have come to expect in 5-4 cases.

The full opinion is now at this link and I am certain I wil have much to say about the ruling and its import in the hours to come.

June 21, 2012 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (7) | TrackBack

Monday, June 04, 2012

Another week of SCOTUS waiting for sentencing fans

I had thought there was a reasonable possibility that the Supreme Court sometime this week might hand down one of the big sentencing cases still pending: Southern Union (Apprendi's application to fines); Jackson and Miller (mandatory LWOP for young juve murderers); Dorsey and Hill (the FSA's application to pipeline cases).  But, as detailed via this post at How Appealing, the Justices did not issue opinions in any of these cases this morning.  They Justices did grant cert and hand down one opinion on police practice issues, and Lyle Denniston reports here at SCOTUSblog that probably the most notable criminal justice decision was a cert denied in two high-profile federal convictions flowing from campaign donations in Alabama. 

According to the folks at SCOTUSblog, it appear that the Court will not hand down opinions again until next Monday.  So, it's another week of waiting for these sentencing rulings.  Fortunately, absent some dramatic or unexpected development (such as a order for reagument), I think we can reasonably expect to see opinions in all of these cases within the next three weeks.

Anyone yet eager to make predictions on the timing, outcomes, vote counts or opinion writers in these big sentencing cases.  At this moments I am inclined to guess we will get Southern Union next week, the juve LWOP cases the week of June 18, and the FSA pipeline cases the week of June 25.  In addition, I think the defendants are likely to previal in these cases by votes of 7-2, 5-4, and 6-3, with Justices Thomas, Kennedy and Sotomayor as principal opinion writers. 

But who really knows with this Court these days!?!?

June 4, 2012 in Blakely in the Supreme Court, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

Thursday, April 19, 2012

Why I think defendants should win "fight about competing background rules" in Hill and Dorsey

Despite lots of travels and other commitments, I have had time now to review and reflect on the SCOTUS oral arguments earlier this week in the Fair Sentencing Act pipeline cases Hill and Dorsey (basics here, transcript here).  Though many parts of the argument merit discussion, here I will focus upon Miguel Estrada's crisp and spot-on statement that these cases ultimately are a "fight about competing background rules."  Specifically, I will explain why I think, as a matter of both doctrine and policy, FSA defendants ought to win the fight in this particular setting where all the FSA does is lower the trigger quantities of crack for applicable mandatory minimum prison terms.

Here I must start by channeling my inner Blackstone to note that the common-law abatement doctrine meant that even if and when a criminal statute was amended to increase penalties, the "background rule" was that defendants could not even be prosecutedfor criminal behaviors that took place prior to this statutory change.  So, for anyone drawn to common-law rules, and especially for those who believe in the statutory interpretation canon that statutes in derogation of the common law should be narrowly construed, the defendants have the common-law background in their favor.

Of course, Congress in 1871 passed the "Savings Statute" which reverses this common-law background rule with a new background rule providing that the "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."  This statute sets out what might be called the Savings background rule and it is the rule that Estrada as the SCOTUS-appointed amicus argues should mean the defendants lose in Hill and Dorsey.

Notably, this Savings background rule has some indisputable import in these cases: absent this background rule, the common-law abatement doctrine would mean the defendants in Hill and Dorsey could not even be prosecuted for their crack offenses!  But nobody has argued that these defendants should now get this common-law windfall and be free of "any penalty, forfeiture, or liability" for their pre-FSA conduct.  Rather the dispute in these cases is whether they should be subject at a post-FSA sentencing to the pre-FSA mandatory minimum triggering levels for certain long prison terms for minor crack offenses.  And, as SCOTUS interpretation of the Savings background rule states, we are to look to the express text and the necessary implications of the new statute to figure out what laws apply to crack defendants being sentenced now.

Here is where the defendants can and have stressed another background rule, namely the Sentencing Reform Act's key provision, 18 U.S.C. § 3553(a)(4)(ii), which calls for sentencing courts to apply the guidelines sentencing law "in effect on the date the defendant is sentenced."  This statutory provision is, functionally, an express reversal by Congress of the Savings background rule for sentencing purposes under modern guideline reforms. 

Congress in the FSA failed to include a specific provision referencing either the Savings background rule or the SRA law-in-effect-at-date-of-sentencing background rule.  But the SRA background rule would seem to be closer in both time and relevance to the FSA's new sentencing provisions AND all major crack offenders are necessarily getting the benefit of the SRA background rule (i.e., they are getting sentenced based on the reduced 18:1 crack sentencing provisions) because the guidelines and not the old (or new) mandatory minimums frame/define the sentences they realistically face.  It seems very weird to think Congress wanted the Savings background rule to sting lesser crack offenders, while the SRA background rule would benefit only more serious offenders.

In addition, the SRA has another important background rule, namely that sentencing judges are always required in every case to impose sentences "sufficient, but not greater than necessary" to achieve the purposes of punishment in the SRA.  This additional "background rule" ensures defendants should not get any  "sentencing windfall" from application of the new provisions of the FSA, but rather these provisions will merely allow judges to no longer be compelled (by now repealed mandatory minimums) to impose sentences for low-level crack offenders that they think are "greater than necesary" (a view Congress and the President has embraced as evidenced by the FSA's passage).

Further still, I think statutory construction canons like the rule of lenity and constitutional doubt provide still further "background rules" for an interpretation of the FSA to favor the defendants here.  Indeed, the very fact that SCOTUS had to appoint an amicus to make an argument for the Savings background rule and nobody else (including no member of Congress) has urged that background rule to prevail further contributes to my (admittedly biased) view that the defendants should win this "fight about competing background rules" in Hill and Dorsey.

A few recent posts on these SCOTUS cases:

April 19, 2012 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (8) | TrackBack

Tuesday, April 17, 2012

Early report on SCOTUS oral arguments in FSA pipeline cases

Thanks to this post by Lyle Denniston at SCOTUSblog, headlined "Argument recap: A dilemma over race," we can all get a quick account of the SCOTUS oral arguments this morning in Hill and Dorsey. Here is how the post begins:

A racial issue in criminal sentencing that has bedeviled all three branches of the federal government for a quarter century took a little time to emerge in a Supreme Court argument on Tuesday, but when it did, it had a noticeable impact on the Justices.  After spending much of the first half-hour focusing on the meaning of two federal statutes, one passed in 1871, the other in 2010, the Court appeared strongly inclined to limit those who could benefit from Congress’s keen desire to narrow the racial disparity in sentencing for cocaine crimes.

But the tone changed as the Justices turned their focus to the prospect of perpetuating that racial disparity for at least a few years longer. That began to look quite unattractive to the Court.

I have a long plane ride this afternoon during which I will poor over the full argument transcript (which is now available at this link), and I am certain I will have a lot more to say about what the Justices had to say today later tonight.

UPDATE A cranky internet connection while on the road has prevented me from finding time to comment more on the oral arguments in these cases, but How Appealing has a collection of media reports on the argument available at this link.  With luck, I hope still to be able to discuss these cases more before the Justices themselves do at this Friday's private conference.

April 17, 2012 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Basic preview of today's SCOTUS arguments on crack sentencing rules

This morning the Supreme Court will hear consolidated argument in the Fair Sentencing Act statutory interpretation cases Hill and DorseyThis new article in the Los Angeles Times, headlined "Supreme Court to weigh crack cocaine sentences," provides a very effective basic preview, and it begins this way:

Nearly two years ago, President Obama signed into law a "fair sentencing" act to reduce the long prison terms meted out to people who were caught with small amounts of crack cocaine. But the law did not make clear whether it should apply to cases that were pending when the measure was signed.

On Tuesday, the Supreme Court will consider whether the lighter sentences apply to hundreds of cases in the pipeline when the law was signed on Aug. 3, 2010.

The issue is complicated because the Justice Department and Atty. Gen. Eric H. Holder Jr. changed their views on the matter. Shortly after Obama signed the law, Holder's department said the changes applied only to new crimes. Last summer, however, after prodding by Senate Democrats, Holder switched his position and said the new rules for crack cocaine prison terms applied to all who were sentenced after Obama signed the bill, even if their crimes took place two or three years before.

For a pair of Chicago-area defendants, the change could mean the difference between serving about three to four years in prison or 10 years behind bars. "It would be unconscionable" to sentence defendants under the law Congress had repealed as too harsh, said Mary Price, general counsel for Families Against Mandatory Minimums. She said many judges balked at using the stiff mandatory sentences after Congress changed them. "The courts were ahead of the Justice Department on this," she said.

A few recent posts on these SCOTUS cases:

April 17, 2012 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Friday, April 13, 2012

Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases

Regular readers know I blogged a lot about the application of the Fair Sentencing Act to what I call "pipeline" crack cases as they worked their way through lower courts over the last two years.  But I have not blogged much about this issue since the Supreme Court in November 2011  formally took up, in the cases of Hill and Dorsey, whether the FSA's new mandatory minimum terms apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date.  I have resisted much blogging since the cert grants largely because I have played a role in helping Hill's lawyers develop their briefs for SCOTUS.

But with the Hill and Dorsey cases now due to be argued early next week before SCOTUS, and with Lyle Denniston providing this detailed account of the background and briefing in these cases at SCOTUSblog, I cannot resist discussing one matter of (seemingly important) semantics that continues to make me nutty in these FSA pipeline cases.  As the title of this post notes, the word that makes me nuts is "retroactivity" (which Lyle uses in his otherwise terrific argument preview), in part because this term can and has been given lots of meanings and in part because I do not think the issue in the Hill and Dorsey FSA pipeline cases is properly cast as a retroactivity issue.

Because I have not done a comprehensive analysis and deconstruction of the term "retroactivity" in all legal settings, maybe I am misguided to let this term drive me crazy here (and readers should tell me so in the comments).  Nevertheless, I do know that in the federal habeas context, the term "retroactivity" has been given a precise meaning and it applies only when a prisoner or defendant is seeking to take advantage of a new legal ruling after his case as become "final" all the way through direct appeals.  Stated differently, for habeas purposes, only unless and when a defendant's case is "final" all the way through all direct appeals does that defendant then have to worry about establishing that a new doctrine should apply "retroactivity."

Critically, the defendants in Hill and Dorsey had not even been sentenced at the time the FSA's new sentencing provisions became law, and so any discussion of the term "retroactivity" in their cases is necessarily inconsistent with how this term is properly deployed in the habeas context.  Moreover, and to add another layer of nuance (and potential confusion), because they had not yet been sentenced, the defendants in Hill and Dorsey at sentencing technically were not asking a court to "undo" any formal legal  determination that had already been made (in contrast to crack defendants already sentenced before the FSA became law but still pursuing direct appeals).  Rather, all that these particular pipeline defendants seek is application of the latest (reduced) sentencing law at the time of their sentencing.

Put more directly and specifically, becuase the new law Hill and Dorsey want applied is a sentencing law, I do not think it is fair or accurate to say they are seeking retroactive application of this new law because they had not yet been sentenced under the old law.  Becuase they committed their crimes at the time when the old sentencing way was still in place, I understand fully why those eager to prevent them from getting the benefits of the new law are asserting that they are pressing a "retroactivity" claim.  But I really do not think that label makes any sense here, especially given that an express key provision of the Sentencing Reform Act, 18 U.S.C. § 3553(a)(4)(ii), calls for sentencing courts generaly to apply the guidelines sentencing law "in effect on the date the defendant is sentenced."  I have never heard anyone describe this provision as the "retroactivity" instruction in the Sentencing Reform Act, nor do I think it has ever been seen as a controversial issue of "retroactivity" when defendants the benefit of reduced guideline sentences at the time of their sentencing even when/if they committed their crimes long before.

All that said and terminology concerns aside, I fully urge everyone to catch up to speed on all these issues via Lyle's effective preview at SCOTUSblog, which includes this crisp account of key elements to the dispute put before the Justices:

The briefs on the merits emphasize that the controversy before the Justices is basically one of statutory interpretation — sorting out the 2010 law, of course, but also a law enacted in 1871. The immediate question is which of the two laws should control the retroactivity question. There is, however, an implied constitutional question. Because of the disparate racial impact of the old 100-to-1 ratio, there is a lurking issue of discrimination in the case. That is being invoked by attorneys for the two Illinois men, on the theory that, to avoid confronting the constitutional issue, the Court should not validate new sentences that are based on the old ratio and thus keep a racially tinged system in operation. The Justice Department makes much of Congress’s wish not to perpetuate the disparity with its racial impact, but does not itself raise the “constitutional avoidance” issue directly....

There is no doubt that Congress definitely wanted to make a break from the experience that had prevailed almost since the very beginning of the 100-to-1 ratio in 1986, but there is enough uncertainty about its specific intentions regarding post-Act sentencing for pre-Act crimes as to leave some doubt in the Justices’ minds. Whether the Court would find ambiguity in the exact text of the 2010 law could be crucial. The amicus has gone to considerable lengths to suggest that, as between the 1871 law and the 2010 law, clarity definitely emerges most in the old law. Moreover, the mere fact that the Circuit Courts have divided as deeply as they have tends to suggest that there is no obvious way to make both the 1871 law and the 2010 statute equally operable on the retroactivity issue.

The Court, of course, is well aware, from its own experience with the crack vs. powder controversy, of the racial overtones that have lingered almost from the original enactment of the 100-to-1 ratio in 1986. A decision to keep that ratio in effect, with the continuing prospect that the racial factor will remain a feature of the actual sentences that do get imposed, may be an unattractive alternative for the Court. But if it should side with the Court-appointed amicus’s argument that numerically there won’t be a great many sentences for pre-2010 crimes, this potential may not be so significant.

Federal sentencing, as a general matter before the Court, has been a troubling and sometimes divisive issue for the Justices. What ultimately will make the difference in outcomes in this field is not easy to see in advance. The dispute over the crack vs. powder disparity has now returned to the Court with two very different perspectives laid before the Justices in the briefs. The quality of the oral argument thus might turn out to be critical in framing the response.

April 13, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (10) | TrackBack

Tuesday, March 13, 2012

Notable comments on sentencing policy reform from AAG Breuer

This DOJ release, headlined "Assistant Attorney General Lanny A. Breuer Speaks at the Benjamin N. Cardozo School of Law," provides the text of a speech given today by the head of Justice Department's Criminal Division. Intriguingly, the text includes a lot of sentencing reform discussion and merits a full read.  These notable passages seemed especially worth highlighting:

Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement....

Today, I want to tell you about one example in particular, involving sentencing policy....

Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses....

Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans.  For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.

As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced.  But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.

Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.

The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.

Of course, our work in the area of sentencing is not done.  As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  In 2005, however, the U.S. Supreme Court decided in the case of Booker v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud.  With increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines.  For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size.  This is another challenge in sentencing that we will need to address in the coming months and years.

The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair.  Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.”  In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for.  That was indeed the case with respect to the Fair Sentencing Act.  At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.

I adore the notion of seeking to "woo" Lady Justice though slow advances; extending the metaphor, I think we might well view debates over sentencing reform as a product of a number of different suitors pitching woo at Lady Justice.

March 13, 2012 in Booker and Fanfan Commentary, New crack statute and the FSA's impact, Who Sentences | Permalink | Comments (7) | TrackBack

Thursday, January 26, 2012

House Judiciary member asks AG Holder good (and overdue) questions on pardon process

Over at Pardon Power (where PS Ruckman continues to do great work on the recent Mississippi pardon spree), there is now this notable new post reporting that a "Legislative Assistant in the Office of Rep. Robert C. 'Bobby' Scott (VA-03) -- member of the House Judiciary Committee -- has confirmed that the following questions have been submitted to U.S. Attorney General Eric Holder":

1. You testified when you were confirmed that you would study the problems with the clemency advisory process and fix them. Please let us know what you have found and what changes you have made or plan to make.

2. It has been reported that the pardon attorney no longer assigns commutation cases to staff attorneys, and does not write a recommendation in the large majority of these cases.

3. How does this fulfill the Department's responsibility to advise the president about the merits of each case?

4. Doesn't this make the commutation process meaningless for most applicants?

5. How can the pardon attorney himself conduct a meaningful review of thousands of commutation petitions?

6. Even if most of these should be denied, if no one is really looking at them, how do you know each one is without merit?

7. We can all agree that no system is perfect.  The legal system is no exception.  There are mistakes.  The Constitution gives the president a role in fixing such mistakes.  How does this procedure help the president do that?

8. How does the pardon office identify the rare exception that deserves a closer look? Political support?  Media attention?  If so, is that the best way — the most fair way — to make these decisions?

As the title to this post suggests, I view all of these question to AG holder to be good ones and long overdue.  In addition, I would have added a substantantive query based on DOJ's testimony and recent Congressional work on crack sentencing: "In light of your Department's advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?"

January 26, 2012 in Clemency and Pardons, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Monday, December 12, 2011

Why the wasteful(?) Eighth Circuit affirmance of FSA pipeline sentence with Hill and Dorsey pending?

As regular readers know (and as reported here), last month the Supreme Court via cert grants in Hill and Dorsey took up the issue of whether the Fair Sentencing Act's reduce crack mandatory minimums apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date.  Because this circuit-splitting issue will now be resolve by the Supreme Court within a matter of months, I find notable and a bit worrisome this ruling today in US v. Duncan by an Eighth Circuit panel which affirms a "old" 5-year mandatory minimum term against a defense challenge that the new law should apply.

The ruling in Duncan notes the circuit split on this FSA application issue and the fact that the Supreme Court has taken up this matter, but it then affirms the sentence by noting existing circuit precedent that forecloses the defendant's argument that the reduced FSA mandatory minimum terms apply to this pipeline case.  But I cannot help but wonder why the Eighth Circuit did not simply hold on to this case awaiting guidance from SCOTUS rather than resolve it against the defendant and thereby require her to file a cert petition to keep the issue preserved.

I assume there are right now dozens, if not hundreds, of similar cases pending in the circuits courts that have rejected the FSA applicability in this situation, and I also assume that the most efficient (and arguably just) way to handle these cases right now is to just keep them on the circuit docket until the Supreme Court rules so that additional filings are not required by the parties until we get a SCOTUS decision.  The approach taken by the Eighth Circuit, however, will now require (1) a SCOTUS cert filing by the defendant, (2) consideration by the SG concerning any possible SCOTUS response, (3) a GVR by SCOTUS if it issues a ruling in Hill and Dorsey with any pro-defendant elements.  And, assuming the defendant in Duncan has a court appointed attorney (as do the vast majority of crack defendants) each one of these steps will be taking place entirely on the federal taxpayers' dime.

Given the size of the federal budget, the thousands of dollars that seem likely now to be wasted in this Duncan case is hardly going to be noticed.  But I still wonder what benefits might be gained by the Eighth Circuit's (too) quick disposition while this matter is pending before SCOTUS.  And I also wonder if (and hope that) other circuits are thinking through these matters before being too quick to resolve cases that seem likely to be back on their docket in only a matter of months.

December 12, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, November 28, 2011

Lots of details on the new SCOTUS sentencing cases

Via SCOTUSblog at this post, I can provide here more information and links to key documents in the exciting new sentencing cases taken up by the Supreme Court this morning:

[T]he Court had been holding one of today’s granted petitions, Hill v. United States, to be considered alongside several other petitions that raise the same issue:  whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.... Hill has been consolidated with Dorsey v. United States (case page forthcoming), for a total of one hour of argument....

Hill v. United States (Granted)

Docket: 11-5721
Issue(s): Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.

Certiorari stage documents:

 

Southern Union Company v. United States (Granted)

Docket: 11-94
Issue(s): Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Certiorari stage documents:

Recent related posts on the new SCOTUS cases:

November 28, 2011 in Blakely in the Supreme Court, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

SCOTUS to review FSA pipeline issue via Dorsey and Hill grants

As indicated on this Supreme Court order list released this morning, the Justice have taken up a pair of cases, Hill v. United States11-5721, and Dorsey v. United States11-5683, to address the circuit split over whether the new Fair Sentencing Act new mandatory minimums for crack offenses apply to defendants who committed crimes but were not yet sentenced when the FSA became law.  Kudos to the Court and huzzah!

Regular readers know that I have be following this intricate "crack-cases-in-the-pipeline" sentencing issue closely for nearly two years (starting way back in March 2010 when the Senate passed its version of the FSA).  I have lots of thoughts on this matter, and I am already thinking about authoring an amicus brief in Hill and Dorsey to address some statutory construction canons that, in my view, have not been fully briefed in the lower courts.

Though I will have more on these cases in the weeks and months ahead, I sure hope for the sake of lots of defendants that lawyers have been effectively preserving this issue in cases that have been in the pipeline all this while.  This issue is now on track to be conclusively resolved by June, and perhaps even sooner (though not a moment too soon).

November 28, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2) | TrackBack

Thursday, October 20, 2011

Split Fifth Circuit deepens split over FSA's application to pipeline cases

I am not tickled to have to report than another circuit has now refused to allow the application of the Fair Sentencing Act's revised statutory sentencing minimums to defendants who committed crack offenses before the FSA became law, but were sentenced after it was signed by President Obama in August 2010.  The new ruling comes from the Fifth Circuit in US v. Tickles, No. No. 10-30852 (5th Cir. Oct. 19, 2011) (available here), and the per curiam majority opinion begins this way:

The court considered these cases jointly without oral argument because they raise a single issue: whether these defendants, who were convicted inter alia of possession with intent to distribute crack cocaine, were entitled to be sentenced according to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111- 220, 124 Stat 2372, when their illegal conduct preceded the Act but their sentencing proceedings occurred post-enactment.  The issue is the retroactivity, or partial retroactivity, of the FSA, a statute intended by Congress to “restore fairness to Federal cocaine sentencing,” 124 Stat. at 2372, by reducing the previous 100:1 ratio between thresholds for sentences for crack and powder cocaine offenses. We are one among many circuit courts that have thoroughly vetted this issue, and we have little to add to the discussions of others.  As will be seen below, we side with those courts that have denied retroactive application.

The dissent by Judge Stewart ends this way:

The will of Congress, as expressed in the Fair Sentencing Act’s substance, preamble, and title, will be disregarded by the courts’ continued imposition of severe penalties which Congress has explicitly determined to be unfair.  Accordingly, I agree with a number of our sister circuits that the provisions of the Fair Sentencing Act apply to all federal cocaine offenders sentenced after the statute’s enactment, regardless of whether the underlying offense conduct occurred prior to the Act’s enactment.  See United States v. Douglas, 644 F.3d 39 (1st Cir. 2011); Rojas, 645 F.3d 1234 (11th Cir. 2011); United States v. Dixon, 648 F.3d 195 (3d Cir. 2011).

The majority opinion would continue to impose disproportionately harsh sentences of imprisonment on many crack cocaine offenders, despite Congress’s clear and obvious determination that such penalties are unfair. For this reason, I respectfully dissent.

October 20, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Wednesday, October 19, 2011

How much sentencing unfairness is resulting from Fair Sentencing Act pipeline disputes?

The question in the title of this post is prompted in part by this notable recent report by Michelle Olsen, which is headlined "Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?" and which first appeared earlier this week in the National Law Journal’s Supreme Court Insider.  Here are background basics as set forth effectively in this piece:

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.  Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies.  Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants.  Each committed crack offenses before the FSA became law, but were sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant.  As a result, the defendants would get the higher sentences.  This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach.  Originally, prosecutors had been told that the FSA only applied to post-FSA offenses.  However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy.  Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact....  As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA....

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari.  If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions.  In such cases, the Court can appoint an attorney to defend the judgments below....

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending.  On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

Given that a key purpose of modern federal sentencing reform was to reduce nationwide sentencing disparities, any circuit split over any federal sentencing provision undermines a goal of modern reforms.  But the circuit split over application of the FSA here is especially significant and disconcerting because many hundreds of crack offenders are sentenced in federal courts every month AND because the only goal of the FSA was to finally make crack sentencings a little more fair nationwide. 

Congress perhaps deserves the most blame for this FSA application mess because it never specified an express effective date for the reduced mandatory minimum crack sentencing provisions in the FSA.  But I also want to blame the Justice Department for making a bad situation even worse.  As this article notes, AG Eric Holder and his Justice Department initially (and I think wrongly) decided that the FSA's application should be limited; then, a full year later, the AG decided (a day late and a few dollars short) that the government should advocate the FSA's application to pipeline cases.  As a matter of substance, I was pleased when DOJ finally read the FSA the way I think it should be read; as a matter of process, this AG flip-flop aggravated the confusion, uncertainty, disparity and unfairness that continues to fester in lower courts sentencing hundreds of crack defendants every month.

There is an additional reason I am grumpy about how the Justice Department is dealing with this FSA pipeline issue: to my knowledge, there has been no serious or significant effort by any Obama Administration officials to urge the Supreme Court to take up this issue ASAP.  These FSA pipeline concerns were lurking from the moment the House in July 2010 passed the FSA and sent it to the White House for signing by President Obama (as I noted in this post).  And the problematic split over application of the FSA in pipeline cases was already clear a year ago when the Douglas case (discussed here) became the first major district court ruling that the FSA should be applied to not-yet-sentence defendants.  Without an extra push from the feds, I fear SCOTUS may not get around to finally resolvingthis FSA pipeline issue until perhaps 2013, with more large and small sentencing unfairnesses likely taking place in lower courts each month along the way.  What a waste.

UPDATE AND CORRECTION: A helpful reader alerted me that earlier this month, the feds have asked SCOTUS to take up this issue through its response to a petition for cert from the defendant in a Seventh Circuit case. The discussion section of this filing (which can be downloaded below) begins this way: 

Petitioner contends (Pet. 7-17) that this Court’s intervention is necessary to resolve a conflict in the circuits about the applicability of the FSA’s revised statutory penalties to preenactment offenders.  The government agrees.  The court of appeals incorrectly concluded that defendants who committed their offenses before the FSA are still subject, in post-FSA sentencings, to heightened statutory penalties that Congress has repudiated as fundamentally unsound.  Although that conclusion accords with the Eighth Circuit’s, it conflicts with the holdings of the First and Third Circuits.  The Seventh and Eighth Circuits have cemented the circuit conflict by denying en banc review to consider adopting the government’s position.

Contrary to the Seventh and Eighth Circuit’s positions, both the text and the purpose of the FSA demonstrate Congress’s intent that the Act apply immediately at all initial sentencing proceedings.  The issue, which will potentially affect the sentences of thousands of current and future federal defendants, is squarely presented in this case. This Court should accordingly grant certiorari and reverse the court of appeals’ judgment.

Download 11-5721_Hill_v._United_States

October 19, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

Tuesday, August 09, 2011

Third Circuit (joining First and Eleventh Circuits) applies FSA lower mandatory minimum terms to pipeline cases

Via its opinion today in US v. Dixon, No. 10-4300 (3d Cir. Aug. 9, 2011) (available here), the Third Circuit has joined two other circuits in declaring that the new mandatory minimum sentencing provisions of the Fair Sentencing Act apply to all defendants who were not yet sentenced at the time of the Act's enactment.  Here is how the opinion in Dixon opinion starts and ends:

The question presented in this appeal is whether the more favorable mandatory minimum prison sentences imposed by the Fair Sentencing Act of 2010 (the “FSA” or the “Act”) apply retroactively to defendants, like Kenneth Dixon, who committed their crimes before the Act became law, but who were sentenced afterwards.  We hold that the FSA does apply in this instance.  The language of the Act reveals Congress‟s intent that courts no longer be forced to impose mandatory minimums sentences that are both indefensible and discriminatory.  Therefore, we will vacate the judgment of the District Court and remand for resentencing....

We hold that the FSA requires application of the new mandatory minimum sentencing provisions to all defendants sentenced on or after August 3, 2010, regardless of when the offense conduct occurred.  “[T]he terms of the law as a whole,” Great N. Ry., 208 U.S. at 465, namely the Act's grant of emergency authority to the Sentencing Commission and the desire to achieve “consistency” through “conforming” amendments, in conjunction with the directive in the Sentencing Reform Act of 1984 to apply the Guidelines in effect on the day of sentencing, lead to the inescapable conclusion that Congress intended to apply the FSA to Dixon.  This interpretation of the Act comports with its stated purpose to restore fairness to federal cocaine sentencing.  To conclude otherwise would frustrate this goal and set “the legislative mind . . . at naught.” Id.  Accordingly, we will vacate the judgment of the District Court and remand so that Dixon may be sentenced in accordance with the terms of the FSA.

Some prior posts on this FSA pipeline issue:

August 9, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, July 29, 2011

"Crack cocaine: One woman's tale"

The title of this post is the headline of this first-person account of the impact of the new crack federal sentencing guidelines appearing in the Chicago Tribune (and forwarded to me by a helpful reader). This piece is authored by Stephanie Nodd, who is in prison in the Coleman Federal Correctional Institution in Florida, and here are excerpts:

Looking back, I know I did something wrong, but I am also sure that I did not need 30 years in prison to learn my lesson.  I am due a second chance, and I plan to make the best of it....

In 1988, just after my 20th birthday, I met a man named John who promised me cash if I helped him set up his new business.  His business was selling crack cocaine. I helped him for a little over a month in return for money I used to pay bills and buy groceries.  After about six weeks, I cut off all ties with John and moved myself and my kids to Boston to start a new life.

We were living in Boston when I was indicted on drug charges in Alabama.  I returned to take responsibility for my mistake.  I prayed I would not have to serve any time because of my clean record and limited involvement.  I could not have been more wrong....

I could not give the prosecutors any information because I did not know anyone.... Meanwhile, John cooperated against everyone, including me. I was eventually charged as a manager in the drug conspiracy and found guilty at trial.  Even though I did not have a criminal record, I was sentenced to 30 years in federal prison.  The year was 1990. George H.W. Bush was president, and no one knew what email was.  I was 23 years old.

I have spent the last two decades behind bars.  Whenever new corrections officers ask me what my sentence is and I tell them 30 years, their first question is always the same: "Who did you kill?"

Earlier this year, the U.S. Sentencing Commission voted to reduce penalties for crack cocaine crimes.  On June 30, the commission voted to apply the new reforms to people serving the long prison sentences required by the old law.  Some people, including some members of Congress, are against retroactivity because they think it will give dangerous criminals a break.  As someone who has already served 21 years in federal prison for a first-time, nonviolent crack offense, I think it's important for the public to get a different perspective.

The truth is that many people are serving sentences that are far longer than I believe is necessary.  I have met women whose husbands, after getting caught selling drugs, turned around and cooperated against their wives in exchange for shorter sentences.  Some of these women had little or no involvement in the drug offense for which they are serving decades in federal prison....

I have tried to stay positive and make the best of a bad situation.  I received my GED, completed college courses and earned other licenses that will allow me to compete for a job when I am finally released.  Thanks to the U.S. Sentencing Commission's vote, I could be released by the end of this year.  I can finally see the light at the end of the tunnel. I know I am not the same woman who kissed her babies goodbye 21 years ago, but I can't wait to be reunited with my children and to meet my new grandchildren.

July 29, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (48) | TrackBack

Monday, July 18, 2011

A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases

As set out in this post from Friday, I was very pleased to learn that Attorney General Eric Holder had sent a two-page memo to all federal prosecutors explaining that he now, finally, believed the FSA's new statutory sentencing terms should apply to all defendants sentenced after the effective date of the FSA. I also expressed my disappointment that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  I thereafter received a sharp email from Dan Stiller, a Wisconsin federal public defender, which he has allowed me to reprint here in full:

The celebration of the Holder memo announcing the AG's flip-flop is justified but, thus far, short-sighted. The position taken in the memo is curative but only to a point.   For 11 months now, AUSAs from coast-to-coast have, at the AG's command, stood before federal courts, arguing an arcane constitutional provision as a means of narrowing the FSA's reach.  As a result, hundreds of defendants over those 11 months have been sentenced to no-longer applicable mandatory minimums.  

Worse, the AG's position over those 11 months has resulted in law -- bad law -- being made and the AG's change-of-heart doesn't (and shouldn't) change the recent jurisprudence.  Here in the Seventh Circuit, the court's stated reason for declining to apply the FSA to pre-enactment conduct being sentenced post-enactment was not "because such is the Government's position."   Instead, the Seventh Circuit, acting upon the Government's now-abandoned suggestion, concluded that the savings clause precludes the FSA's application to pre-enactment conduct.  The AG's flip-flop can't, to borrow Judge Walton's phrase from the Clemens trial, unring the relevant bell.

So while we celebrate the Holder memo, I fear the plight of my 170-gram pre-enactment client who appears for sentencing on Wednesday before a district court within the Seventh Circuit.  While I will be waiving the Holder memo in the direction of the bench, I fear that the judge will waive the Seventh Circuit's decision in Fisher back at me.  If so, my client will be sentenced to a defunct mandatory minimum that is nearly double the low-end of his post-enactment guideline range.  So forgive me if my celebration of the Holder memo is muted.

Some prior posts on this FSA pipeline issue:

July 18, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (16) | TrackBack

Friday, July 15, 2011

Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue

Regular readers know that, since the Fair Sentencing Act became law in August 2010, lower courts have been divided over whether defendants who committed crack offenses before the FSA was enacted but had not yet been initially sentenced should get the benefits of the FSA's new mandatory minimum provisions.  And, as I explained in this post way back in October 2010, I have been troubled and disappointed that the Justice Department had been arguing in these "pipeline" cases that defendants should continue to be sentenced under the old now repealed 100-1 crack/powder ratio if their crimes were committed before August 3, 2010.  

I am now pleased to report than I need not be troubled or disappointed by DOJ's position on this issue anymore, because today Attorney General Eric Holder has come to see the statutory sentencing light and reversed course.  In a two-page memo to all federal prosecutors dated July 15, 2011 (and available for download below), AG Holder details his new view on this issue: 

In light of the differing court decisions -- and the serious impact on the criminal justice system of continuing to impose unfair penalties -- I have reviewed our position regarding the applicability of the Fair Sentencing Act to cases sentenced on or after the date of enactment.  While I continue to believe that the Savings Statute, 1 U.S.C. § 109, precludes application of the new mandatory minimums to those sentenced before the enactment of the Fair Sentencing Act, I agree with those courts that have held that Congress intended the Act not only to "restore fairness in federal cocaine sentencing policy" but to do so as expeditiously as possible and to all defendants sentenced on or after the enactment date. As a result, I have concluded that the law requires the application of the Act's new mandatory minimum sentencing provisions to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.  The law draws the line at August 3, however.  The new provisions do not apply to sentences imposed prior to that date, whether or not they are final.  Prosecutors are directed to act consistently with these legal principles.

Download Holder FSA memo 7.15.11

Though I am pleased that AG Holder has now seen the light on this issue of statutory interpretation, I remain deeply disappointed that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  Among the costs of this mistake has been a large number of sentencings based on the old law that now will need to be redone, not to mention many litigation resources expended as defense counsel and judges have been force to grapple with DOJ's prior position.  So while I celebrate DOJ now getting this right, I cannot help but express sadness that this reversal of course took so long.

Among the benefits of this change of position should be a quick end to lots of district and circuit (and possible SCOTUS) litigation over this pipeline issue.  But, of course, the principal benefit of this new DOJ policy is that more defendants will now be able to benefit from the fairer sentencing terms that Congress created through its enactment of the FSA last year.

Some posts on this FSA pipeline issue:

July 15, 2011 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9) | TrackBack

Wednesday, July 06, 2011

Eleventh Circuit panel re-issues (updated) opinion finding FSA lower crack mandatories apply all sentenced after FSA

Regular readers may recall this post a few weeks ago about the important Eleventh Circuit panel ruling in US v. Rojas late last month declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter."  Today, the Eleventh Circuit released a new version of the Rojas opinion, available here, which now starts this way:

We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341, 2011 WL 2120163 (1st Cir. May 31, 2011).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

Here is what appears to be a key new paragraph from the new Rojas opinion:

We do not disagree with our sister circuits in one major sense — absent further legislative action directing otherwise, the general savings statute prevents a defendant who was sentenced prior to the enactment of the FSA from benefitting from retroactive application.  Further, we share in the well-reasoned view of the First Circuit that Congress intended for the FSA to apply immediately.  See Douglas, 2011 WL 2120163, at *4 (“It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums.”).

Some posts on this FSA pipeline issue:

July 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, July 05, 2011

Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website

I am very pleased to see and to report that the US Sentencing Commission's ever-improving website now has this special webpage titled "Materials on Federal Cocaine Offenses."  This new special page provides especially effective and comprehensive coverage of the USSC's decision last week to make its new crack sentencing guideline retroactive.  This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful "Reader-Friendly" Version of Amendment on Retroactivity, which becomes effective November 1, 2011.

I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics.  I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers.

July 5, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Recommended reading | Permalink | Comments (2) | TrackBack

Friday, July 01, 2011

US Sentencing Commission makes new crack guidelines retroactive

As detailed in this official press release, as expected the USSC "voted unanimously ... to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010." Here is more from the Commmission's press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. ...

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction.  The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades.  The average sentence for these offenders, even after reduction, will remain about 10 years.  The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive.  Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses.....

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission.  The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

This New York Times report on the decision provides some notable quotes in reaction:

Calling the difference between crack and powder “cultural, not chemical,” Jim E. Lavine, the president of the National Association of Criminal Defense Lawyers, said that the old sentencing policy placed the heaviest penalties on minorities and the poor.  “A civilized society doesn’t mete out punishment based on a defendant’s culture or skin color,” Mr. Lavine said....

A number of lawmakers had opposed retroactive sentence reductions, arguing that they would endanger communities. Representative Dan Lungren, Republican of California, said in an interview that he was “very disappointed” in the commission. Mr. Lungren said he supported the 2010 law in part because it was not retroactive.  “That was not our intent,” he said.

Some recent related posts:

July 1, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences | Permalink | Comments (9) | TrackBack

Thursday, June 30, 2011

US Sentencing Commission voting today on making new FSA crack guidelines retroactive

As previously noted here and as indicated in this official public notice, this afternoon at a public meeting, the US Sentencing Commission will vote on whether and how to make the new reduced crack offense federal sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  Still, the smart money is on the Sentencing Commission voting to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporter on the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

I will be on the road and likely off-line until very late tonight, but the folks at FAMM are all over this issue, as evidenced by this new item on FAMM's homepage:

Today! Historic Sentencing Commission vote on retroactivity

At 1 p.m., the U.S. Sentencing Commission will vote on retroactivity of the crack guidelines.  FAMM's Mary Price told the Associated Press, "there is a tremendous amount of hope out there ... there is a potential that people could see their sentences reduced, some quite dramatically."  Learn more -- read FAMM's latest factsheet, "Myths and Facts on Crack Guideline Retroactivity" and other resources.  FAMM will also report live from the vote on Twitter.

June 30, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Monday, June 27, 2011

US Sentencing Commission slated this week to vote on new FSA crack guideline retroactivity

As indicated in this official public notice, this Thursday, June 30, a public meeting of the US Sentencing Commission is scheduled at which the USSC is expected to vote on whether and how to make the new reduced crack offense sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  The Sentencing Commission has posted here on its website a lot of interesting links to the input the USSC has received about this consequential issue.  (Enterprising researchers and students can learn a lot about the politics and practicalities of federal drug sentecing by reviewing these materials.)

Based on the (incomplete and non-insider) buzz that I have heard surrounding this issue, I predict that the Sentencing Commission will vote to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 27, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences | Permalink | Comments (3) | TrackBack

Friday, June 24, 2011

Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment

Big ruling on crack sentencing today from the Eleventh Circuit on an issue that has divided district courts and is starting to see numerous circuit courts weigh in.  Here is how the opinion in US v. Rojas, No. 10-14662 (11th Cir. June 24, 2011) (available here).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1).  Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law.  The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA.  After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.

On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence.  Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence.  Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109.  Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment.  We conclude that the FSA applies to defendants like Vera Rojas who had not yet been sentenced by the date of the FSA’s enactment.  The interest in honoring clear Congressional intent, as well as principles of fairness, uniformity, and administrability, necessitate our conclusion.  Accordingly, we reverse and remand to the district court for re-sentencing.

Some posts on this FSA pipeline issue:

June 24, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Thursday, June 02, 2011

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

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

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

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

Recent related posts:

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

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

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

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

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

June 2, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14) | TrackBack

Wednesday, June 01, 2011

Lamar Smith's (deeply misguided) statement about crack retroactivity debate

Via the Main Justice blog I came across a notable, and in my view deeply misguided, statement issued by House Judiciary Chairman Lamar Smith concerning today's US Sentencing Commission hearing about whether to make its new crack guidelines retroactive. Here is the statement:

“The Sentencing Commission is poised to once again overstep its role and enforce laws not as enacted by Congress, but as the Sentencing Commission believes they should be enacted.  Congress did not create the Sentencing Commission to legislate or amend the laws passed by Congress.  But that is precisely what the Commission is considering with the Fair Sentencing Act of 2010.  Nothing in the Act nor in the congressional record implies that Congress ever intended that the new crack cocaine guidelines should be applied retroactively.  And yet, the Sentencing Commission may release thousands of crack traffickers before they have fully served their sentences.

“I’m also disappointed by the Obama administration’s position supporting the release of dangerous drug offenders.  It shows that they are more concerned with wellbeing of criminals than with the safety of our communities.  This sends a dangerous message to criminals and would-be drug offenders that Congress doesn’t take drug crimes seriously.

“The members of the Sentencing Commission are unelected and therefore are not accountable to the American people.  Time and again, the Sentencing Commission has chosen to usurp the authority of Congress and impose its will on our communities.  It is time for Congress to restore accountability to our sentencing laws and ensure that the Sentencing Commission cannot continue to create law without Congressional approval.”

There are so many troubling aspects of this statement with respect to the work of the US Sentencing Commission, I am not sure where to begin.  Most critically, everything that the US Sentencing Commission does is always subject to subsequent rejection by Congress, so the notion that the USSC does lots of stuff without at least tacit congressional approval is just wrong.  More specifically, there are in fact parts to the Fair Sentencing Act of 2010 and lots in the congressional record to suggest that Congress did expect and intend that the new crack cocaine guidelines could and should be applied retroactively by the USSC. 

As for the pot-shots at the Obama Administration, this rhetoric is even worse and even more irresponsible.  As reported here, the Obama Administration's position on crack retroactivity is expressly that "dangerous drug offenders" should not get the benefit of the new lower crack guidelines.  Moreover, to assert that Justice Department is "more concerned with wellbeing of criminals than with the safety of our communities" itself sends a "dangerous message" that the House Judiciary Chair doesn’t take seriously the challenge of responsible public policy decision-making and instead has a greater interest in sound-bite demagoguery.

Recent related posts:

June 1, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences | Permalink | Comments (7) | TrackBack

Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive

June kicks off with big US Sentencing Commission doings:  the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive.  A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive.

Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for (partial) retroactivity of the new reduced crack guidelines:

Holder described the Obama administration’s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive.  Applying the measure to those previously sentenced could affect about 12,000 inmates....

“We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law,” Holder said.  Retroactive reductions in sentences shouldn’t apply to those who possessed or used weapons in committing their crimes or offenders with “significant” criminal histories, Holder said.

The full text of AG Holder's written testimony and of many others testifying today before the USSC are linked from this page.  Here is a key passage from AG Holder's testimony:

The Commission’s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees.  In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The Administration’s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set.  However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.

This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me (though the devil can and will often be in the details).  I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 1, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Tuesday, May 31, 2011

First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases

I am quite pleased (and a bit surprised) to be able to report this afternoon that a panel of the First Circuit today has unanimously affirmed US District Judge D. Brock Hornby important ruling in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (opinion here; blogged here), which had concluded that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well."  Here are a few notable passages from today's big circuit ruling in US v. Douglas, No. 10-234 (1st Cir. May 31, 2011) (available here): 

None of the Supreme Court cases squarely governs this case.  Two of those cases (invoked by Douglas), United States v. Chambers, 291 U.S. 217 (1934), and Hamm v. City of Rock Hill, 379 U.S. 306 (1964), overrode section 109 in problematic situations.  While the analytical explanation given in each case has little bearing on this one, the cases do suggest that some sense of the "fair" result, arguably helpful to Douglas in light of the reformist purpose of the FSA, sometimes plays a role in applying section 109. See Goncalves, 2011 WL 1631649, at *6-7.

Perhaps closer to this case from a factual standpoint is Marrero (relied on by the government); it held that Congress' creation of parole eligibility for serious drug offenders, overturning a prior statutory bar, would not apply retroactively to those serving sentences for crimes committed prior to the new statute.  Marrero, 417 U.S. at 663-64. Still, the conflict between an 18:1 guidelines sentence and a 100:1 mandatory minimum may seem to some more pronounced than making the availability of parole depend on whether the prisoner committed the crime before or after an amendment allowed parole.

Further, the imposition now of a minimum sentence that Congress has already condemned as too harsh makes this an unusual case.  It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.

Finally, while the rule of lenity does not apply where the statute is "clear," e.g., Boyle v. United States, 129 S. Ct. 2237, 2246 (2009), section 109 is less than clear in many of its interactions with other statutes, and that is arguably true in the present case as well.  Our principal concern here is with the "fair" or "necessary" implication, Marrero, 417 U.S. at 659 n.10; Great N. Ny. Co., 208 U.S. at 465, derived from the mismatch between the old mandatory minimums and the new guidelines and to be drawn from the congressional purpose to ameliorate the cocaine base sentences.  But the rule of lenity, applicable to penalties as well as the definition of crimes, adds a measure of further support to Douglas.

In addition to being very big news for many crack defendants in the First Circuit, this new Douglas ruling creates a crisp circuit split because the Seventh Circuit has come to a different view on this issue and has already rejected en banc review of its ruling that the new lower FSA minimums do not apply to not-yet-sentenced defendants.  Consequently, the oft-needed circuit split to foster SCOTUS review is now in place (and I would not be too surprised if the SG's office seeks cert from this Douglas ruling in light of the Seventh Circuit's contrary opinion).

Some posts on this FSA issue:

May 31, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Wednesday, May 25, 2011

Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases

As regular readers know, I have been following closely (and have been at times involved in) the litigation surrounding the issue of applying the Fair Sentencing Act's revised mandatory minimum sentencing provisions to not-yet-sentenced defendants.  Today, Seventh Circuit Judge Williams (joined by Judge Hamilton), has this opinion making the strongest arguments for applying the FSA to these pipeline cases, though this opinion comes as a dissent from the circuit's denial of en banc review of a panel decision (blogged here) that was decided the other way in March.

Anyone involved with on-going FSA litigation will want to review this new opinion, and here is a passage that effectively articulates what I consider the strongest justification for reading the FSA's new minimums to apply to not-yet-initially sentenced cases:

The panel recognized [the argument based on the FSA's Section 8 directive to the USSC to amend the crack guidelines ASAP], but then stated that Congress “could have dropped a hint” that it sought to apply the FSA to pending cases “in its charge to the Sentencing Commission.”  I see no hint that Congress intended otherwise.  In that very charge, in fact, Congress ordered the USSC to exercise emergency powers to conform the guidelines to the FSA “as soon as practicable,” and no later than ninety days, instead of waiting for the Commission to promulgate new guidelines under existing procedures.  When the FSA was enacted, Congress was undoubtedly aware of the default rule of applying amended guidelines to pending cases, which would require the application of a new 18:1 guideline ratio regardless of when the violation occurred.  Section 8 of the FSA sought to promote “consistency” between the guidelines and the statute, which signals an intent to apply the FSA to pending cases just as the guidelines would be.  Under the panel’s interpretation, for many defendants currently being sentenced whose conduct occurred before the FSA was enacted, the sentencing court would calculate an 18:1 guideline ratio, but would have to apply a statutory 100:1 ratio.  Oddly, under the panel’s interpretation, of these defendants, the only ones who benefit from this “emergency authority” are the worst offenders, whose new guidelines range would be reduced to the statutory minimum. Congress’s mandate in section 8 would not have made much sense if Congress did not intend the FSA to apply to defendants in Dorsey’s situation because, regardless of what the Commission promulgated, the new guidelines would simply look to the old statutory minimums. 

Some posts on this FSA issue:

UPDATE Thanks to this post at SentencingSpeak, I saw this effective local article about one (of many?)individuals adversely impacted by the continued application of the old crack mandatory minimums.  The piece is headlined "Old mandatory-minimum law lengthens Pittsburgh man's crack-cocaine sentence," and here is an excerpt:

In December, Mr. Brewer pleaded guilty to aiding in the possession with intent to distribute five grams or more of crack-cocaine, worth a street value of about $500. He was sentenced Wednesday to five years in federal prison, a mandatory minimum penalty authorized by a defunct law.

If Mr. Brewer were arrested today in the same situation, he would face a guideline sentence of 46 to 57 months incarceration. A federal law enacted in August eliminated the 60-month mandatory minimum for defendants like him, raising the amount of crack-cocaine needed to trigger that punishment to 28 grams....

The sweep of the new law did not catch Mr. Brewer, though, who was indicted before it was implemented. That conundrum has blindsided defendants across the nation since the sentencing act was passed, frustrating their lawyers and baffling their families.

"I know people who have shot someone and gotten less than five years in jail," said Mr. Brewer's mother, Nicole Roach, who drove more than 100 miles in a rented car to attend her son's sentencing. She emerged in shock, recalling how Mr. Brewer's guilty pleas in 2005 and 2007 to drug possession resulted in probation. "If there's a new law, it should be applied," said Mr. Brewer's fiancee, Ebony Tolliver, of Mount Washington. "How does that work?"

May 25, 2011 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack