Friday, October 15, 2010

US Sentencing Commission action to implement FSA and new crack guidelines

As detailed in this public notice, the United States Sentencing Commission has a public meeting scheduled for this afternoon in DC, and the agenda includes "Possible Vote to Promulgate Emergency, Temporary Amendment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   These proposed amendments were previously set out by the USSC here.

Relatedly, the USSC has now posted here the materials "received by the Commission in response to its request for public comment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   Here are links to all this stuff:

U.S. Department of Justice

Rep. John Conyers, Jr., Chair of the House Committee on the Judiciary and Rep. Robert C. "Bobby" Scott, Chair of the House Subcommittee on Crime, Terrorism, and Homeland Security

Senator Richard J. Durbin

Probation Officers Advisory Group

Federal Public and Community Defenders

National Association of Criminal Defense Lawyers

Families Against Mandatory Minimums

American Civil Liberties Union

The Sentencing Project

Citizen Letters

UPDATE:  As detailed in this news release, on late Friday "the United States Sentencing Commission voted to promulgate a temporary, emergency amendment to the federal sentencing guidelines consistent with the statutory changes to crack cocaine and other drug trafficking offenses made by the Fair Sentencing Act of 2010 [which] will take effect on November 1, 2010."

The release explains that the "Commission estimates that the new average sentence for trafficking in crack cocaine will be 101 months, a 13.7 percent decrease in average sentence length. The Commission estimates that more than 1,500 prison beds will be saved after five years and that more than 3,800 beds will be saved after ten years."

October 15, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (3) | TrackBack

Friday, September 03, 2010

US Sentencing Commission releases proposed amendments to implement FSA and final priorities

Though I will certainly need the long weekend to consume and assess and comment on all of the new materials that emerged this week from the US Sentencing Commission, I wanted to spotlight these important new USSC documents ASAP.  So, here are the titles and descriptions of all the new goodies just put out by the US Sentencing Commission (with links to the documents referenced):

Proposed Amendment and Issues for Comment: Fair Sentencing Act of 2010: The Commission is seeking comment on its emergency, temporary proposed amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111–220). The Act was signed into law on August 3, 2010, and requires the Commission to promulgate its emergency, temporary amendment (pursuant to section 21(a) of the Sentencing Reform Act of 1987 (28 U.S.C. § 994 note)) within 90 days, i.e., not later than November 1, 2010. Public comment is due [30 days after publication in the Federal Register].

"Reader-Friendly" Version of Proposed Emergency Temporary Amendment and Issues for Comment: Fair Sentencing Act of 2010: This compilation contains unofficial text of the proposed emergency temporary amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111-220). Official text will appear in an upcoming edition of the Federal Register.

Notice of Final Priorities: In July 2010, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2011. (See 75 Fed. Reg. 41927) After reviewing the public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these priorities.

September 3, 2010 in Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (6) | TrackBack

Tuesday, August 03, 2010

Fair Sentencing Act about to alter crack sentencing ... with lots of transition issues to follow

As noted in this new Washington Post editorial, President Obama is expected to sign the Fair Sentencing Act of 2010 into law on Tuesday.  As detailed in prior posts, the FSA reduces somewhat the disparity between crack and powder cocaine sentencing in mandatory minimums, it is not entirely clear how the US Sentencing Commission will adjust impacted sentencing guidelines or what cases in the pipeline will be effected by the revisions in the Act.

I imagine there will be unique the transition issues for those indicted but not yet convicted, as well as those convicted but not yet sentenced, under the old law.  In addition, we will have only 90 days to wait for new guidelines from the US Sentencing Commission as well, which presents a host of related transition issues.  Rather than spot the possibilities, I encourage readers to use the comments to note the transition issues they expect to be raised and litigated most frequently after the Fair Sentencing Act becomes law later today.

UPDATE:  Here is a brief USA Today piece on the FSA's signing, which is headlined "Obama signs law targeting disparities in cocaine cases." Here is an excerpt:

President Obama signed a law today designed to change the way that crack and powder cocaine are handled in court. The Fair Sentencing Act is "a bipartisan bill to help right a longstanding wrong by narrowing sentencing disparities between those convicted of crack cocaine and powder cocaine," Obama said last week in a speech to the National Urban League. "It's the right thing to do."

August 3, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (17) | TrackBack

Wednesday, July 28, 2010

House of Representatives seems poised to finally pass federal crack/powder disparity reform bill

As detailed in this new AP article, which is headlined "Congress seeks to narrow gap in cocaine sentences," it appears that the House of Representatives is today going to approve the compromise crack sentencing reform bill that made it though the Senate back in March. Here are the basics:

The House planned to vote Wednesday on the measure that would change the 1986 law under which a person convicted of crack cocaine possession gets the same mandatory prison term as someone with 100 times the same amount of powder cocaine.  The legislation would reduce that ratio to about 18-1.

The Senate has passed the legislation. House approval would send it to President Barack Obama.  "There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses," Attorney General Eric Holder said when the Senate acted in March....

Under current law, possession of 5 grams of crack triggers a mandatory minimum five-year prison sentence.  The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine.  The proposed legislation would apply the five-year term to someone with 28 grams, or an ounce, of crack.  It would be the first time in 40 years that Congress has repealed a mandatory minimum sentence.

All reports suggest that President Obama would sign this compromise bill, and I assume he would do so ASAP. 

The exact timing of this bill becoming law is important for lots or reasons, especially because I believe the bill gives the US Sentencing Commission only 90 days to develop needed guideline amendments in response to the law.  That, in turn, means the USSC may have to, before the end of October, significantly rewrite a significant portion of the current drug sentencing guidelines.  And that, in turn, means everyone (and their lawyers) with current or pending federal drug offense sentences will have a lot more to be watching over the next few months than just the baseball pennant races.

Some recent related posts:

UPDATE: It is official, as detailed in this new AP article on the House vote today:

The House, by voice vote, approved a bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature. During his presidential campaign, Obama said that the wide gap in sentencing "cannot be justified and should be eliminated." The Senate passed the bill in March....

"For Congress to take a step toward saying 'we have made a mistake' and this sentence is too severe ... is really remarkable," said Virginia Sloan, president of the Constitution Project, which in studies of sentencing practices has referred to crack cocaine mandates as a "'poster child' for the injustices of mandatory sentencing." Under current law, possession of five grams of crack triggers a mandatory minimum five-year prison sentence. The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine....

The Congressional Budget Office said the bill would save the government $42 million over five years because of the reduction in prison populations.

Rep. Lamar Smith of Texas, the top Republican on the Judiciary Committee, was the only lawmaker to speak against the bill, saying the 1986 law was enacted at a time when the crack cocaine epidemic was bringing a sharp spike in violence to minority communities and it would be a mistake to change it. "Why do we want to risk another surge of addiction and violence by reducing penalties?" he asked. "Why are we coddling some of the most dangerous drug traffickers in America?"

Rep. Bobby Scott, D-Va., noted that the bill also requires the sentencing commission to significantly increase penalties for drug violations involving violence. "This way the defendant is sentenced for what he or she actually did, not the form of cocaine involved," Scott said.

July 28, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (9) | TrackBack

Friday, June 11, 2010

Split Sixth Circuit ruling spotlights split over who can get resentenced under new crack guidelines

Within the next few weeks, the Supreme Court will hand down a ruling in the Dillon case dealing with the extent of a district court's authority to reduce sentences when a defendant is eligible for a reduction under the Sentencing Commission new reduced crack guideline.  But the Dillon case is unlikley to resolve or even address questions concerning just who is eligible for a reduction in the first instance, and this eligibility issue has lead to some circuit splits in a variety of contexts

An intriguing  new split opinion today from the Sixth Circuit in US v. Pembrook, No. 08-6452 (6th Cir. Jun. 11, 2010) (available here), spotlights some aspects of this debate over this eligibility issue. Here is how the majority opinion in Pembrook starts:

In 1997, Daryl Marcus Pembrook pleaded guilty to possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was a career offender. At sentencing, Pembrook prevailed upon the district court to depart downward from his career-offender guideline range to a sentence stated with reference to the analogous range for his crack-cocaine offenses. A decade later, Pembrook filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the crack-cocaine guidelines had lowered his applicable guideline range. The district court denied his motion, on the grounds that Pembrook’s applicable guideline range was his career-offender range–not his crack-cocaine range–and Amendment 706 did not affect that range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline range was his career-offender range, and Amendment 706 did not have the effect of lowering that range, we affirm.

Here is how the dissent in Pembrook starts:

The Sentencing Guidelines should be interpreted, if the words can fairly be so read, to permit resentencing when a properly applied Guideline that affected the length of a sentence is later retroactively reduced. When two Guideline calculations were properly used at two different steps of the sentencing determination process to determine a defendant’s original sentence, no policy supports permitting resentencing only if the first, but not if the second, calculation would have been different under a retroactive amendment. It is hard to imagine why the Sentencing Commission would adopt such a policy.  The syntax of the operative policy statement language does not require such a limit; indeed, it cuts the other way.  Under the policy statement, there must have been a lowering of “the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).  The words most naturally mean “a guideline range [properly] applied to the defendant.”  The words do not require that there be only one such range. By analogy, if a sport rule provides for a penalty if “the player’s foot steps out of bounds,” English syntax does not require that the rule apply only to the right foot or the left foot.  The clear meaning of “the player’s foot” is “a foot of the player.”  In short, because the Sentencing Commission retroactively lowered the Guideline range that the district court properly applied to Pembrook so as to affect his sentence, the requirements of the statute and the operative policy statement were fulfilled, and the district court had the authority to resentence Pembrook.

I have not given much attention to these issues as we await a ruling from the Supreme Court in Dillon.  But it will be interesting to see if SCOTUS will take up

June 11, 2010 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (0) | TrackBack

Monday, April 26, 2010

House bill to create "National Criminal Justice Commission" to be rolled out tomorrow

This new press release from the office of Representative Bill Delahunt (D-MA) reports on a notable legislative development to be formally annouced at a press conference tomorrow. Here are the details:

U.S. Reps Bill Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), and Tom Rooney (R-FL) will hold a press conference on Tuesday April 27, 2010 at 11:30AM in Room 2255 of the Rayburn House Office Building to announce the introduction of the National Criminal Justice Commission Act of 2010.

The National Criminal Justice Commission Act of 2010, was introduced in the Senate as S. 714 by Senators Jim Webb. The bill has received widespread bipartisan support and has 37 cosponsors in the Senate, including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), Chairman of the Subcommittee on Crime and Drugs Senator Arlen Specter (D-PA) and Ranking Member Senator Lindsey Graham (R-SC), and Judiciary Committee member Senator Orrin G Hatch (R-U).

It will create a blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system.  The Commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies.  After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.  The bill has been endorsed by approximately 100 organizations.

A copy of the bill will be available at the press conference.

I think much good could come from having a new "blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system," especially if this National Criminal Justice Commission is effectively staffed and funded.  But I am fearful that the creation of a new study commission, who won't issue recommendations until probably 2012 or beyond, could become a distraction from the critical important federal criminal justice reform work that could and should be getting done right now.

Indeed, this very press release has me wondering (again!) about the status of crack/powder sentencing reform in the House.  It has now been more six weeks since the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  I had heard rumors that similar compromise legislation might get through the House in April, but these rumors now seem unlikely to become a reality. 

In light of this background, I am not especially excited by House members getting all excited about the introduction of the National Criminal Justice Commission Act of 2010.  I do not think this development is itself a reason for criticism, but it does remind me of how important it is for those interested in serious criminal justice reform to keep their eyes on the prize.

Some related recent and older posts:

April 26, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (6) | TrackBack

Thursday, March 18, 2010

Will and should House adopt the crack/powder reform compromise passed by Senate?

As detailed in this post, late yesterday the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  This compromise legislation as passed by the Senate cuts the ratio to roughly 18:1 and does so by keeping powder sentences the same and essentially reducing the severity of the mandatory minimums for crack offenses.  As I have noted in prior posts, most advocates for crack/powder sentencing reform view this Senate compromise as an improvement over the status quo, but a lot less than was sought/hoped by reform advocates.

The next big question, then, is whether the House will adopt this compromise so that it can become law (and, relatedly, whether the most vocal advocates for more significant reform will urge the House to adopt or reject this Senate passed reform).  Thought I can make lots of strong arguments for why the House should not be content with what has passed in the Senate, I also think that getting even some little reform done ASAP is now a lot more important than getting the best possible reform. 

In short, to answer the normative question in the title of this post, I think the House should adopt the crack/powder reform compromise in the exact form that was passed by Senate yesterday.  (I reach this view in part because, as I will explain in future posts, the US Sentencing Commission could and should "enhance" the impact of this reform through subsequent guideline amendments.)  But I am not sure if the House will, or if others agree that the (less-than) half-a-loaf crack fix passed by the Senate is good enough for now.

March 18, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (13) | TrackBack

Thursday, March 11, 2010

Varied reactions to the crack/powder reform work of the Senate Judiciary Committee

I have seen or received lots of distinct commentary in reaction to Senate Judiciary Committee's unanimous vote today to reduce (but not eliminate) crack/powder disparity in federal mandatory sentencing statutes (reported here).  Here is a sampling:

From the Office of Senator Jeff Sessions, here is part of this press release titled "Sessions, Hatch Commend Bipartisan Compromise on Drug Sentencing":

U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, today joined with Sen. Orrin Hatch (R-UT) in commending the unanimous committee approval of a bipartisan compromise bill to address the disparity in the sentencing penalties between crack and powder cocaine...

Sessions said, “This is an important bipartisan compromise and I especially want to thank Chairman Leahy, Senator Hatch, and Senator Durbin for their efforts. I have long believed that we need to bring greater balance and fairness to our drug sentencing laws. But I have also maintained that a guiding principle of that effort must be that we not place any obstacles in front of the police officers and prosecutors fighting every day to keep our communities and their residents safe. Through this change in the thresholds for mandatory minimum sentences, we will be able to achieve needed fairness without impeding our ability to combat drug violence and protect victims. These reforms strengthen our justice system and I hope the full Senate will consider and act on this proposal.”

From the US Department of Justice, here is the full text of this statement from Attorney General Eric Holder:

"There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses, and I have strongly supported eliminating it to ensure our sentencing laws are tough, predictable and fair.

"The bill voted unanimously out of the Senate Judiciary Committee today makes progress toward achieving a more just sentencing policy while maintaining the necessary law enforcement tools to appropriately punish violent and dangerous drug traffickers.

"I applaud the work of the Senate Judiciary Committee, particularly Chairman Leahy, Ranking Member Sessions and Senators Durbin and Graham, in taking such an important step toward reforming our sentencing laws. I look forward to the Senate and the House approving this legislation quickly so that it can be signed into law."

From the blog TalkLeft, here is part of this postfrom Jeralyn titled "Judiciary Committee Waters Down Crack-Powder Cocaine Sentencing Bill":

The 100:1 ratio and mandatory minimum sentences will not be eliminated, but reduced to 20:1. In other words, no equalization. Crack cocaine will continue to carry a penalty 20 times more severe than powder cocaine. Is it an improvement? Yes. Is it good enough? No....

There's more bad stuff in the bill as introduced -- it reeks of Joe Biden-type influences -- increased sentencing guidelines for some drug crimes through application of aggravating factors.

The bill we needed was Bobby Scott's H.R. 3245 which passed the House Judiciary Committee in July. It would have eliminated the "100 to 1" disparity by removing the word "crack cocaine" in the criminal code.

Instead, we get another crime bill with increased penalties and no equalization. Again, while the reduction is an improvement, the bill is a big disappointment.

And last but not least, from lawyer Gary G. Becker, who sent me this passionate e-mail not long after hearing the news:

The Senate Judiciary Committee’s vote to “reduce” the crack cocaine/powder cocaine punishment disparity from 100:1 to 20:1 is a scandalous, racist, and politically motivated act.  In view of the near-unanimous consensus that there is no justifiable basis for punishing crack cocaine more harshly than powder cocaine, and that the 100:1 ratio was both arbitrary and irrational – even DOJ called for elimination of the disparity -- the Senate Judiciary Committee settles on an equally unsupportable, irrational, and arbitrary punishment scheme, one that will disproportionately affect minorities, destroy families, and promote disrespect for the law.

March 11, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (9) | TrackBack

Sunday, March 16, 2008

Op-ed on "Crack-cocaine sentencing injustice"

Professor Mark Osler has this new op-ed titled "Crack-cocaine sentencing injustice."  Here are snippets:

By 1995, hundreds of African-Americans had been prosecuted for crack offenses, but relatively few whites. In 1993, for instance, over 88 percent of the mandatory minimum sentences for crack were imposed on blacks. Aside from the obvious racial disparity, the law did not seem to be doing its job of deterring crime. The crack epidemic expanded at the same time as the prison population. Part of the problem with the 100:1 ratio was that it was an incentive to sweep up the members of a drug conspiracy who were most easily replaced....

For nearly two decades, the 100:1 ratio was part of mandatory minimum sentences and the federal sentencing guidelines.  However, recently the 100:1 ratio finally was bent back toward reasonableness. First, the United States Sentencing Commission modified the federal sentencing guidelines. It reduced sentences for crack cocaine relative to powder, but still provided stiffer sentences for crack.  Next, the Supreme Court ruled that judges could depart from the 100:1 ratio if they disagreed with it on policy grounds.  Finally, the Sentencing Commission decided that the changes in the crack law would apply retroactively....

Even after these long-overdue changes, one voice cried out in support of maintaining the 100:1 ratio. That was Attorney General Michael Mukasey.  Despite the near-uniform urging of experts that the ratio be changed, Mukasey urged Congress to reverse the Sentencing Commission’s decision.

Some recent related posts:

March 16, 2008 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Monday, February 25, 2008

House hearing Tuesday on crack sentencing disparity

As detailed on this official webpage, the House Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing tomorrow afternoon titled "Cracked Justice – Addressing the Unfairness in Cocaine Sentencing."  I have no idea who is scheduled to testify, though I suspect all the usual suspects will be out in force.

Indeed, this webpage at the Sentencing Project explains that tomorrow has been declared a special day in the legislative battle:

“My community has experienced the harm caused by drug abuse,” said Howard Saffold, a former Chicago police officer and participant in the “Crack the Disparity” Lobby Day cosponsored by The Sentencing Project. “We need services to treat people who are addicted to crack cocaine and employment opportunities for the young men who have, for various reasons, chosen to sell it. Excessive prison terms do not address the real problems.”...Saffold and 50 other community leaders from around the country will attend today's hearing before the House Judiciary's Subcommittee on Crime, Terrorism and Homeland Security and urge their representatives in Congress to push through crack cocaine sentencing reform this year.

The “Crack the Disparity” Lobby Day is sponsored by: American Bar Association, American Civil Liberties Union, Break the Chains, Drug Policy Alliance, Families Against Mandatory Minimums, National Association of Criminal Defense Lawyers, Open Society Policy Center, The Sentencing Project and United Methodist Church.

Another press release concerning the House hearing is available from the Drug Policy Alliance.

Though I am very pleased to see all this energy devoted to an important and highly symbolic issue, I fear that the current Congress is going to little serious interest in moving ahead with serious sentencing reform during this election year.  I feared this was true even before AG Mukasey came out swinging against the modest changes enacted by the US Sentencing Commission last year.  And the fact that all the major candidates seem eager to avoid too much discussion of crime and punishment issues sees to me to largely ensure that 2009 is the earliest that anyone should expect real reforms to have a chance to move forward.  But that's just my gut instinct, and I have been surprised by sentencing politics before and surely will be again in the future.

Some recent related posts:

February 25, 2008 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Monday, February 18, 2008

Examining realities of crack sentencing reform

USSC Commissioner John Steer and attorney Mark Allenbaugh have this new Findlaw piece, titled "The State of Federal Cocaine Sentencing Policy: Will Congress Soon Finish What the U.S. Sentencing Commission Started?".  Here is how it ends:

[T]he Justice Department is rightly concerned about public safety, and a greater emphasis on re-entry programs is welcome.  Congress, therefore, should carefully monitor developments.

The Sentencing Reform Act of 1984 envisioned a very limited, well-regulated remedial process in which judges make their sentence reduction decisions within parameters set by the Sentencing Commission. In the wake of U.S. Supreme Court decisions granting greater judicial sentencing discretion, there may be a tendency for some to exceed intended boundaries in these special, limited-purpose retroactivity proceedings. If that becomes a significant problem, Congress should determine if remedial legislation is warranted.

Finally, Congress also needs to fully understand that a more complete, just resolution of the entire crack/powder excessive disparity issue is now squarely in its hands and urgently needs prompt legislative action.  As Commission Chairman Judge Ricardo Hinojosa recently testified before the Senate Judiciary Committee, "[t]he Commission believes that there is no justification for the current statutory penalty scheme for powder and crack cocaine offenses," and "the Commission is of the opinion that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties and therefore must be legislated by Congress."

February 18, 2008 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, February 13, 2008

Is crack reform to be subject to bargained justice?

The Washington Post has this intriguing little item suggesting a crack sentencing reform deal could be in the works:

Congress could limit the early release of crack cocaine offenders as part of a possible deal with the Bush administration to reduce a disparity in cocaine sentencing, a leading Democrat said yesterday.

Sen. Joseph R. Biden Jr. (Del.) said there is growing support in Congress for revising a 22-year-old law that sets far harsher federal penalties for crack cocaine than for powder cocaine.  A Justice Department willingness to reduce the disparities and revise a mandatory minimum sentence for crack possession makes a deal possible, Biden said. He said he could consider in return the Bush administration's plea to limit a pending release of crack offenders whose sentences were cut by the U.S. Sentencing Commission.

"I'm willing to consider a compromise [as long as] . . . there's a significant change relative to disparities, a significant change relative to minimum mandatory, and in return for that I'm willing to talk about a meaningful change in retroactivity," Biden said after a hearing of the Senate Judiciary subcommittee he chairs.

I would be very surprised if this kind of deal becomes a legislative reality anytime soon, but it is really interesting that this sort of deal-making is being openly discussed.

Some recent related posts:

February 13, 2008 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (4) | TrackBack

Tuesday, February 12, 2008

Gearing up for today's Senate crack hearing

All the usual suspects have useful information on their website in anticipation of today's afternoon Senate hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity."  The Sentencing Project has this new webpage with links, and FAMM has this page analyzing some various crack sentencing reform bills that have been put forward.  In addition, CQ Today has this effective article about all the current crack wackiness.  Here is how the piece starts:

A Tuesday hearing before a Senate Judiciary subcommittee is just the latest front in a widening battle between Democrats and administration officials over federal sentencing guidelines for crack cocaine offenses.

What’s up next?  One possibility is legislation designed to block recent action by the U.S. Sentencing Commission — action that effectively reduces sentences for crack cocaine offenses.  That legislation may not go very far.  But the escalating torrent of incendiary rhetoric designed to maximize political gain could have more far-reaching effects — especially in an election year.

The CQ Today article effectively highlights the interesting — and highly unpredictable — political stories surround this Senate hearing and the broader sentencing issues that it raises.  In an election year in which very few folks inside the Beltway have few strong political talking points, I won't be surprised to see a return to "tough-on-crime" rhetoric coming from both sides of the ailse.  However, given the economic and human costs of the legislation that this rhetoric has produced — as highlighted by my last three posts about Idaho reforms and Sargeant Lett and the pardon power — this kind of rhetoric may not be as politically effective as it once was.  At least that's what I am hoping, and this Senate hearing may well provide a very interesting window into how both parties are thinking about crime politics for November 2008.

Proof that the politics on these issues are changing comes in part from this new Washington Times editorial, titled "Reforming crack-cocaine law," authored by J.C. Watts and Asa Hutchinson.  Here is how it starts:

Both of us are former Republican congressmen; one of us is the former head of the Drug Enforcement Administration; and neither of us has ever been accused of being "soft on crime." That is why some may find it surprising that we respectfully disagree with our attorney general with regard to federal sentencing guidelines on crack and powder cocaine.  Simple standards of fairness call for the attorney general to support the recommendations of the U.S. Sentencing Commission, which reduce the disparity of sentences and make the changes retroactive.

Some recent related posts:

February 12, 2008 in New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

Tuesday, February 05, 2008

Helping the federal judiciary (but not private lawyers) with crack retroactivity

A self-described "friend of the blog" sent me the following e-mail:

I thought that you might be interested in the programs that the Federal Judicial Center is developing for the District Courts. The e-mail announcing the programs is set out below. I believe all of the programs are accessible only through the judiciary's intranet website or TV network.

To All District and Magistrate Judges:  I am pleased to announce the availability of three Center initiatives that may be helpful in applying the new Sentencing Guideline pertaining to crack cocaine convictions.

1. An FJC Online web resource: the Crack Cocaine Retroactivity Guideline Information Exchange.  The Federal Judicial Center is providing this resource in response to the need for a central location for judges, chief probation officers, district court clerks, senior staff attorneys, and federal defenders to share information and resources concerning policy, practical application, and local procedural issues.  You can search the Exchange by topic, add your own topics, pose questions, and offer answers to others.  Links to relevant websites are included.  You can also post documents and reference materials. The Exchange is also available through the FJC Online home page at http://cwn.fjc.dcn.

2. An FJTN broadcast, Using BOP Sentry Reports to Evaluate Sentencing Reductions, a 30-minute live program on Thursday, February 7, at 1:00 p.m. EST.

3. An FJTN broadcast, Sentencing in Federal Courts: Applying Gall, Kimbrough, and the New Cocaine Guidelines, which has been rescheduled to debut on February 27 at 3:00 p.m. EST.

E-mails announcing the availability of the Exchange and the FJTN broadcasts have been sent to chief probation officers, district court clerks, senior staff attorneys, and federal defenders.

Barbara Rothstein, Director, Federal Judicial Center

Of course, I am pleased to see so may efforts afoot to help with implementing the new crack guidelines.  But I am disappointed (and getting grumpy) that private attorneys and academics and other non-federal-employees (like me) are being shut out from these significant resources.

February 5, 2008 in New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Saturday, February 02, 2008

Senate crack/powder sentencing hearing later this month

As detailed in this official hearing notice and in this FAMM webpage, the U.S. Senate Judiciary Committee, Subcommittee on Crime and Drugs has scheduled a hearing for the afternoon of Tuesday, February 12 titled "Reforming the 100-to-1 Crack/Powder Disparity."  As FAMM notes, "three bills have been introduced in the Senate and will likely be the subject of debate at the hearing."  What FAMM does not note is that it seems pretty unlikely that any of these bills will go anywhere in an election year.

The witnesses for the hearing have not been announced, though I would guess the usual suspects on this issue (with the usual advocacy positions) will be showcased.

February 2, 2008 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Monday, January 28, 2008

Notable new defender resources on crack retroactivity implementation

Over at the Crack Cocaine Guideline Amendment resource page of the Office of Defender Services website I just saw a bunch of interesting new resources discussing the implementation of the new crack guidelines retroactively.  Here are the new materials that really caught my eye:

January 28, 2008 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Sunday, January 27, 2008

Viginia is (not) for (crack) lovers

Va_for_loversThis new article from US News & World Report, headlined "Releasing Crack Convicts Early: The first batch of convicted crack cocaine dealers will getting out this year, and Virginia will feel the brunt," spotlights the local quality of the (purportedly uniform) federal sentencing system.  Here are snippets:

[N]o place in the country will feel the impact of the [crack guideline] changes more than the Eastern District of Virginia, which has 7 percent — 1,404 cases — of the nation's 19,500 individuals impacted by the new guidelines.  That is nearly double the amount in the next highest areas, the middle district of Florida and the district of South Carolina.

How this stretch of Virginia, which runs from the border of Washington, D.C., through Richmond and Norfolk, came to host more most federal crack cocaine cases than any other district has little to do with the prevalence of drug trafficking. Rather, the disproportionate share of affected individuals serves as an example of how the politics of criminal justice is always local....

Frustrated that local prosecutors treated crack cases as only misdemeanors, the U.S. Attorney's office began working with local law enforcement to prosecute them on the federal level, where mandatory minimum sentences make jail time much longer.... The choice to prosecute under federal law angered some federal judges and defense attorneys who felt smaller dealers overburdened the federal system....

The result was soon clear. By 1993, the Eastern District of Virginia had the fourth-highest number of crack cocaine cases in the nation, then 114....  It's a pattern hardly unchanged to this day.  In 2006, the Eastern District of Virginia topped the nation in crack cocaine prosecutions with 253 — a sign that crack dealers will continue to face heavy enforcement in the region.  And Chuck Rosenberg, U.S. Attorney for the Eastern District of Virginia has no regrets. "It's a federal crime, so I don't apologize for prosecuting it."

January 27, 2008 in New USSC crack guidelines and report | Permalink | Comments (6) | TrackBack

Saturday, January 26, 2008

AG Mukasey talking (seriously?) about pushing legislation to undo crack retroactivity

The end of this New York Times article provides more details on Attorney General Michael Mukasey's position on crack retroactivity:

Mr. Mukasey also revealed [in a Friday news conference] that the department was considering whether legislation should be introduced in Congress to block or modify a federal sentencing commission’s decision to reduce prison sentences for crack cocaine dealers. “We need to see what the prospect is for getting legislation and on what terms,” said Mr. Mukasey, who has criticized the commission’s move since it could result in the early release of potentially violent criminals.

This effective Los Angeles Times piece provides more background on this issue and highlights that crack retroactivity reductions have already become a reality for a few offenders in Oregon:

Atty. Gen. Michael B. Mukasey told reporters Friday that the Justice Department may attempt to derail new sentencing guidelines that are expected to allow the early release of thousands of convicted drug offenders.  But that train already appears to be leaving the station. In a surprising development, federal judges in Portland, Ore., have truncated the prison sentences of five defendants convicted of crack cocaine offenses, getting a jump on controversial guidelines that are scheduled to go into effect in March.  The reduced sentences, including two ordered up in the last week, are believed to be the first in a nationwide program that could ultimately cut federal prison time for more than 19,500 convicts. One of the defendants has been released from prison, and the remaining four are in different stages of the process, said Steve Wax, the federal public defender in Oregon....

The attorney general has been unusually outspoken about the possible effect of the reduced crack cocaine sentences.... "Many of those [defendants eligible for release] were involved in violence, and can be expected to continue after they get out," he told reporters. He added that he was especially concerned that inmates released unexpectedly early would not receive the normal job training and drug treatment offered to offenders before their release. "None of that will have happened, or a lot of it will not have happened, by the time some of these folks get out," he said. "And that's a cause of anxiety."

Wax, the public defender in Portland, said the system there appeared to be handling the cases with care, reflecting the close cooperation of local judges, prosecutors, probation officers and public defenders.  Two of the five prisoners granted sentence reductions, he said, were sent to halfway houses to serve some of their probationary time before their release into the community. One defendant is being deported; another was transferred from federal to state custody to face other charges.  He said the inmate who was released was originally sentenced to 18 months in prison for distributing a small amount of crack.

I was not aware of these interesting Oregon developments, and I hope to blog more about them if/when I get additional information.  Meanwhile, it seems clear to me that AG Mukasey is not seriously interested in a legislative fight over this issue right now: it's unlikely, despite Senator Hillary Clinton's misguided opposition to crack retroactivity (details here and here), that a bill rejecting the new guidelines' retroactivity could secure passage in a Democratic Congress anytime soon. 

I suspect AG Mukasey is now being "unusually outspoken" primarily to influence federal district judges as they consider motions for crack sentencing modifications.  As the AG knows, no defendant will get a reduced sentence without judicial approval.  During the post-Booker period, tough talk by DOJ has led judges to be particularly cautious about lenient sentences that might become "tough-on-crime" political talking points.  I suspect that the AG and main Justice hope that tough talk about going to Congress might make it easier for local federal prosecutors to oppose sentence reductions in individual cases.

Some related posts on the practicalities and politics of crack retroactivity:

January 26, 2008 in New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

Thursday, January 24, 2008

AG Mukasey makes ugly cracks about crack retroactivity when announcing new crime initiative

As detailed in this official DOJ statement, in "a speech before the U.S. Conference of Mayors, Attorney General Michael B. Mukasey today announced the President is seeking $200 million in funding for a new Violent Crime Reduction Partnership Initiative for Fiscal Year 2009." 

I am very pleased to hear that the Administration is going to focus crime-fighting energies and monies on violent crimes.  However, I was very troubled to see from this Reuters report that AG Mukasey could not resist taking a silly swipe at the US Sentencing Commission's crack retroactivity decision.  Here's are excerpts from the Reuters article:

A pending early release of hundreds of crack-cocaine dealers whose sentences have been judged unfairly harsh threatens to cause more crime in U.S. cities, Attorney General Michael Mukasey warned on Thursday.  But some mayors said Mukasey was exaggerating the threat and described the real problem as a lack of federal assistance for programs aimed at helping ex-convicts return to society.

Mukasey told the U.S. Conference of Mayors about 1,600 convicted criminals — "many of them violent gang members" — may be released as early as March under a decision by the U.S. agency that sets sentencing guidelines for federal crimes. "A sudden influx of criminals from federal prison into your communities could lead to a surge in new victims with a tragic but predictable result," Mukasey said.

But Kevin Burns, the mayor of North Miami, Florida, said Mukasey seemed to be "striking fear" and it was most likely that only non-violent offenders would be released early. "I think it was possibly overstating it a bit," Burns told Reuters after the speech....

Some mayors said they agreed with reducing cocaine sentence disparities but shared concerns over early releases. The biggest problem is a lack of programs to help ex-convicts, Bridgeport, Connecticut, Mayor Bill Finch said.  "A lot of these people feel like society has thrown them on the trash heap," he told Reuters. "The more we get tough on crime, the more we fill these prisons up, the more we create a balloon at the end that becomes the cities' problem."

Mukasey acknowledged a need for education, job training, drug treatment and housing to help ex-offenders, but said these may be unavailable for the early-release crack prisoners.  "We need time to develop all of that and roll it out, time that blanket retroactivity might not allow us," he said.

It is a telling and disappointing reality that city mayors better understand and talk more responsibly about federal sentencing realities than does the Attorney General.  The USSC's new crack rules are carefully structured to avoid early release of offenders likely to endanger public safety and they do not amount to "blanket retroactivity."  Moreover, the USSC has been seriously discussing — with a DOJ official a part of the discussion — crack reform for more than a year and the serious prospect of some early releases has been well-known since at least May 2007.  If DOJ would get serious about real solutions instead of scaring folks about unreal problems, perhaps it would have the time that AG Mukasey says he needs.

Jeralyn at TalkLeft here and the folks at FAMM justifiably assail AG Mukasey for fear mongering.

UPDATE:  Friday's Los Angeles Times has this effective article about AG Mukasey's crack comments, including lots of appropriate and critical analysis of the AG's assertions:

The bleak assessment offered by Mukasey was challenged by inmate advocacy groups, public defenders, judges and even some of the big-city mayors listening to his remarks.  "In the grand sweep of the nation's criminal justice system, the release of this minuscule number of prisoners will not affect crime rates.  It will, however, significantly improve the perceived fairness of our federal criminal justice system," said Paul Cassell, a professor at the University of Utah law school.

Cassell -- a former federal judge who led a policymaking arm of the federal courts that supported the sentence reductions -- noted that no prisoner would be released under the program unless a judge decided the inmate was no longer a threat to the community.  "All of these prisoners were going to be released in the future," Cassell said, "so the retroactivity provision simply provides a slight acceleration of their release date."

The number eligible, equal to about 10% of the federal prison population, amounts to the most sweeping act of federal clemency in history.  But it is a small fraction of the inmates released from state and federal prisons every year.  "About 700,000 people are coming out of prison this year, many of whom were convicted of a violent offense. So now the change means we'll have 701,600 instead. Seems like he's kind of missing the point," said Marc Mauer, executive director of the Sentencing Project, an inmate advocacy group in Washington.  Mauer said that the criticism "is really an insult to the judges."

Mukasey himself was a federal judge for 18 years before retiring in 2006.

"I think [Mukasey] is wrong," said Michael Nachmanoff, the federal public defender for much of Virginia. "First, the number of people getting out in March may be much lower, and second, probation and the courts are more than capable of supervising these individuals."

January 24, 2008 in New USSC crack guidelines and report | Permalink | Comments (6) | TrackBack

Tuesday, January 22, 2008

Seeking reports from the "crack amendment retroactivity summit"

I mentioned in this post that I had heard reports of USSC involvement in seminars intended to help lawyers better understand what's going on with implementing the new crack guidelines retroactively.  Thanks to a helpful reader, I have now learned about a multi-day "Crack Amendment Retroactivity Summit" taking place in Saint Louis starting tomorrow.  The event is noted at this website, where one can find this draft agenda.

Disappointingly, I do not see any mention of this "Summit" on the US Sentencing Commission's official website, even though the draft agenda indicates that USSC staff members are playing an integral role in this event.  Moreover, the event website has this somewhat ominous note in bold type:

Please note: This Summit is limited only to Government Officials, such as Federal Judges and their Court Clerks, U.S. Attorneys and Assistants, Federal Defenders, U.S. Probation Officers, Bureau of Prisons staff, Sentencing Commission officials, Department of Justice personnel, U.S. Court Clerks or designees, and U.S. Marshals.  Proper identification will be required for registration at the hotel and attendance at the sessions.

Despite the fact that I and all other non-government officials are shut out for this summit for some reason, I am hopeful that the select group allowed to get up to speed on crack retroactivity in Saint Louis might share some of their learning (and materials) from this summit ASAP.

January 22, 2008 in New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

More crack retroactivity action (and related questions)

Over at the Second Circuit Sentencing Blog, Harlan Protess reports here on another New York district court opinion gearing up for crack retroactivity, this time from Judge Sifton in the EDNY.   The opinion in US v. Wood, No. CR-88-0723 (CPS), 2008 WL 163694 (EDNY Jan. 15, 2008), seeks a response from the government today, and I hope to post any notable brief that comes my way.  Here is how Harlan reacts to what's going on in his legal backyard:

This is the second in a now growing trickle of retroactivity motions, and the second time an offender likely will be eligible for immediate release upon the effective date of retroactivity. Motions of this sort raise a whole host of questions. From the public's perspective, will the naysayers and politicians who opposed retroactivity use individuals like Wood as poster-boys for the release of convicted felons onto the streets?  Will that cause any public backlash? From the prosecutor's perspective, will U.S. Attorneys Offices nationwide be clogged with motions like that filed by Wood that will require responses from individuals who likely were not involved in the original cases?  Will they be able to find the files from cases years ago?  Can they handle the volume?

While Harlan is focused on these case-specific concerns, I am curious how some of the system-wide actors are gearing up for crack retroactivity March madness.  Has the Justice Department issued internal guidance to local US Attorneys concerning how to respond to these issues?  Has the US Sentencing Commission prepared any new materials to help courts and litigants?  The USSC website does not seem to have any new crack retroactivity materials, though I have heard reports of USSC involvement in (public?) seminars intended to help lawyers better understand what's going on. 

(As noted before, the folks at the Office of Defender Services has made available this impressive and important 23-page memorandum that seeks to provide "a comprehensive analysis of issues that may arise in the retroactive application of the crack cocaine guideline amendments."  But this memo, dated Jan. 2, is now already a bit dated and provides only on perspective on implementing crack retroactivity.)   

Some recent related posts:

January 22, 2008 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Monday, January 07, 2008

Important memo analyzing crack retroactivity issues

Thanks to the folks at the Office of Defender Services, this website now has made available this impressive and important 23-page memorandum that seeks to provide "a comprehensive analysis of issues that may arise in the retroactive application of the crack cocaine guideline amendments."  The memo is dated January 2, 2008, and was authored by the National Federal Defender Sentencing Resource Counsel.  Key topics covered in this memorandum include:

  1. the right to counsel
  2. the right to a hearing, and the right for the defendant to be present
  3. the right to a full resentencing in accord with Booker v. United States
  4. obtaining early release for defendants eligible for release before March 3, 2008
  5. retroactive application of the amendments in special cases, including career offender and Armed Career Criminal cases.

January 7, 2008 in New USSC crack guidelines and report | Permalink | Comments (2) | TrackBack

Sunday, December 30, 2007

Continued crack coverage ... but to what effect?

Valuably, the US Sentencing Commission recent work lowering the crack guidelines sentencing ranges and the Supreme Court's Kimbrough decision continue to generate media stories about the inequities in federal drug sentencing.  This AP article, for example, spotlights the continued 100-to-1 ratio reflected in crack and powder cocaine mandatory minimum sentencing terms even though, according to Nora Volkow, director of the National Institute on Drug Abuse, there is "no scientific justification to support the current laws."   

Similarly, this morning's Los Angeles Times has this lengthy article headlined "Chipping at tough crack sentencing: Laws were ineffective and the drug's ravages overblown, experts say."  The piece does a very effective job documenting the history crack-powder sentencing disparities, but then note the political problems that have continued to impede significant reform:

"I thought, 10 years ago, as the [crack] issue lost its prominence, one would see more rational decision-making," said Peter Reuter, professor of public policy at the University of Maryland and co-director of the drug policy research center at RAND. Instead, he said, "the issue lost its saliency," and "politicians lost interest."...

Despite relaxation of the guidelines, people caught with crack cocaine still will face long prison terms. Congress so far has refused to retreat from the "mandatory minimum" laws that require prison terms of at least five years for possession of crack cocaine.

But some lawmakers have been pressing for change. Calling it "a terrible flaw in the criminal justice system," Sen. Joseph R. Biden Jr. (D-Del.), a Democratic presidential candidate, proposes eliminating the 100-to-1 disparity between powder and crack cocaine. Reps. Sheila Jackson-Lee (D-Texas) and Charles B. Rangel (D-N.Y.) have introduced similar bills in the House. Sens. Jeff Sessions (R-Ala.) and Orrin G. Hatch (R-Utah) -- have proposed raising the amount of crack cocaine that would trigger a mandatory prison term.

But none of these proposals has won approval from the judiciary committees of the House or Senate. Mark Kleiman, a UCLA professor of public policy and a drug policy expert, said: "Nobody [in Congress] wants to go home and explain why they let the crack dealers out of prison."

December 30, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Tuesday, December 25, 2007

A different story about a baseball player and drugs

Perhaps even sadder than the Mitchell Report is the story of Willie Mays Aikens's experience with a drug more troublesome than steroids. The Washington Post has this lengthy article telling Aikens's story and the possibility it will be altered by the new crack guidelines.  Here is it begins:

Willie Mays Aikens is a part of baseball lore.  As a member of the 1980 Kansas City Royals, he became the only man to hit more than one home run in two games of the same World Series. But 27 years after his feat, Aikens languishes in a federal prison in Jessup, Ga., brought low by cocaine addiction and a federal law that mandated long prison sentences for crack cocaine offenses.

From a face on a baseball card, Aikens is now a poster child for what some jurists and civil rights activists say is the absurdity of the difference between the way federal law treats people convicted of crack cocaine offenses and those found guilty of crimes involving powder cocaine.  Aikens received more than 15 years for possession of 64 grams of crack -- about the same weight as a large Snickers bar.  To receive an equivalent sentence, he would have had to possess nearly 6.5 kilos -- more than 14 pounds -- of powder cocaine.

"You can supply a whole neighborhood with 6.5 kilos," Aikens said by telephone from prison, where he is in the 13th year of his sentence. Activists, lawyers and many federal judges say cases such as Aikens's demonstrate the inequity of cocaine sentencing laws and validate the U.S. Sentencing Commission's recent decision to ease prison time guidelines for crack offenders. The new guidelines will apply retroactively to about 19,500 inmates.

Within hours of the decision, Aikens said he was on the telephone with his lawyers, asking them to request a sentence reduction. They calculated that the new guidelines could shave nearly 2 1/2 years off his sentence. "The disparity, as far as I'm concerned, is totally wrong," said Aikens, a nonviolent offender. "This took me away from my family. My girls were 4 and 5 years old when I was sentenced. Now they're 18 and 19."

The Bush administration fought the new guidelines, saying inmate petitions would overburden the federal court system, and hardened criminals, some violent, might go free. Thousands of cases will have to be litigated again in the courts where they were heard, and "those cases are going to detract from the many cases that are already pending in overworked, understaffed U.S. attorney's offices," said Steve Cook, vice president of the National Association of Assistant U.S. Attorneys.  Commissioners said it was highly unlikely that judges would free inmates with a violent past.

Some recent related posts:

December 25, 2007 in New USSC crack guidelines and report | Permalink | Comments (5) | TrackBack

Monday, December 24, 2007

Local perspective on implementing crack retroactivity

My home-town Columbus Dispatch has this article on Ohio federal courts gearing up for implementing the now retroactive crack guidelines. Here are some excerpts:

At least 224 federal prisoners who were convicted here of crack-cocaine crimes could be released early, according to an estimate by the U.S. Sentencing Commission.  A Dec. 11 decision that allows sentences to be reduced won't take effect until March 3, but prisoners already are lining up to apply, officials said.

Phone lines have been ringing steadily with inquiries, said Steve Nolder, a federal public defender. And U.S. District Judge Gregory L. Frost said one inmate's request for early release has been on his desk since Dec. 17.

Last spring, the commission eased the sentencing guidelines for crack-cocaine offenses. On Dec. 11, it voted to make the reduction retroactive so that those already convicted could be eligible for early release.... Local judges said the change was long overdue. "It should have never been a 100-to-1" disparity, Frost said.  Decisions on how the changes will be instituted are forthcoming, but it appears an inmate must petition the court for early release, U.S. District Judge Edmund A. Sargus said....

The federal court's Southern District of Ohio, which includes Columbus, Dayton and Cincinnati, has slightly more than the national average of eligible cases. The Northern District, which includes Cleveland, Akron, Mansfield and Toledo, has 396 eligible cases -- the 12th-highest among the federal court's 94 districts.

I was intrigued by the article's assertion, apparently paraphrasing Judge Sargus, that "decisions on how the changes will be instituted are forthcoming."   Forthcoming from whom?  From the US Sentencing Commission?  From district courts through rules?  Are there folks at the Justice Department and in defender offices working on protocols for processing these motions for sentencing reductions in these crack cases?  In short, this inquiring blogger wants to know who has started working on a game plan for implementing the retroactive crack guidelines.

Some recent related posts:

December 24, 2007 in New USSC crack guidelines and report | Permalink | Comments (6) | TrackBack

Thursday, December 20, 2007

Bill introduced to overturn USSC's crack retroactivity decision

As detailed in this press release from House member Lamar Smith, there is now officially a bill in Congress to overturn the US Sentencing Commission's decision to make its new crack guidelines retroactive.  Here are excerpts from the press release:

Ranking Member Lamar Smith (R-TX) [has] introduced legislation to protect American communities from convicted crack offenders.  This bill ensures that an estimated 20,000 criminals will not be released before serving their full prison sentence.

“The American people have the right to know that their homes and communities are safe from dangerous criminals and convicted crack cocaine traffickers,” stated Ranking Member Smith.  “The decision by the U.S. Sentencing Commission to apply lowered penalties for crack cocaine offenders retroactively undermines the efforts of law enforcement officials across the nation and raises serious public safety concerns.”...

“To protect the American people and combat the dangerous drug trade, we must ensure that convicted criminals remain behind bars,” concluded Smith. “This bill keeps communities safe from crack cocaine offenders by prohibiting the early release of 20,000 criminals.”

Additional members of the House Judiciary Committee joining Ranking Member Smith in sponsoring this bill include Crime Subcommittee Ranking Member Louie Gohmert (R-TX), Representatives Steve Chabot (R-OH), Howard Coble (R-NC), J. Randy Forbes (R-VA), Trent Franks (R-AZ), Elton Gallegly (R-CA), Jim Jordan (R-OH) and F. James Sensenbrenner, Jr. (R-WI).

As the press release highlights, the only supporters of this bill as of this writing are Republicans.  Indeed, with Democrats now controlling both houses of Congress, I doubt that this bill will get passed.  However, one notable Democratic Senator, Hillary Clinton, has expressed her opposition to making the new crack guidelines retroactive.  So, this bill already has the tacit support of at least one prominent Democratic Senator.  It will be interesting to see if she or someone else proposes a similar bill in the Senate and also whether this bill ever gets a hearing or serious traction in the legislative process.  Stay tuned.

Here is an abridged account of some of my prior blog coverage on this issue and its politics:

December 20, 2007 in New USSC crack guidelines and report | Permalink | Comments (9) | TrackBack

Wednesday, December 19, 2007

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

December 19, 2007 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (0) | TrackBack

Monday, December 17, 2007

Reflections on crack sentencing reform realities

Articles today in the Chicago Tribune and the New York Times provide fitting accounts of why persons interested is significant sentencing reforms should not get too jazzed about last week's amazing federal sentencing events. James Oliphant's Tribune article is headlined "New drug rules won't crack many jail doors," and it starts this way:

When the U.S. Sentencing Commission last week reduced sentences for imprisoned crack cocaine offenders -- reversing years of policy that treated crack far differently from powder cocaine -- the Justice Department and police groups bitterly criticized the action, warning of a flood of criminals rushing out onto America's streets....

But many experts say the reality is not so dramatic.  Fewer than 3,000 prisoners nationwide will be immediately eligible for the relief.  All have already served considerable time.  Each eligible prisoner will have to petition the court for freedom -- and the Justice Department can oppose those petitions.  Few offenders with violent histories are likely to be released.

Adam Liptak's Times column is headlined "Whittling Away, but Leaving a Gap," and it starts this way:

There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.

The net effect: tinkering.  The United States justice system remains, by international standards at least, exceptionally punitive.  And nothing that happened last week will change that.

December 17, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Thursday, December 13, 2007

Latest crack retroactivity FAQ from FAMM

Now available and subject to regular revision at FAMM's website is this document entitled "FAQs about crack amendment retroactivity."  This 3-page document covers "frequently asked questions about the federal crack guideline amendment and its retroactive application."   Here's one of many important Q & A sections:

Q: Will the crack amendment automatically apply to all crack offenders sentenced before November 1, 2007?

A: No. Only the sentencing court can decide whether the amendment applies to the prisoner and whether the prisoner gets a sentence reduction. To obtain a sentence reduction, the prisoner must make a motion under 18 U.S.C. § 3582(c)(2) to the court that sentenced him/her.

December 13, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, December 12, 2007

USSC's "Reader-Friendly" version of retroactivity amendment

Now up at the US Sentencing Commission website is this notice:

"Reader-Friendly" Version of Amendments on Retroactivity Effective March 3, 2008 On December 11, 2007, the Commission voted to give retroactive effect to the recent crack cocaine amendment and adopted other modifications to the policy statement covering retroactivity. This reader-friendly text combines the text of the two amendments to policy statement §1B1.10 [Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)] and shows §1B1.10 as it will appear in a forthcoming supplement to the Guidelines Manual.

Official text of the amendments will be posted on the Commission’s website at and can be found in a forthcoming edition of the Federal Register. The amendments incorporated into this reader-friendly version of §1B1.10 do not take effect until March 3, 2008. Until that date, the court should apply §1B1.10 as it exists in the Guidelines Manual effective November 1, 2007.

December 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

"Give them McDeath, not McLiberty"

Though there will surely be lots of different political reactions to the US Sentencing Commission's crack retroactivity decision, I found this news item reporting on one reaction especially notable:

Yesterday, Congressman Patrick McHenry (R-NC-10) issued the following statement in response to the U.S. Sentencing Commission’s decision to give retroactive leniency to convicted crack cocaine abusers and dealers.....

“The bottom line is this decision will let over 500 convicted criminals loose on the streets of Western North Carolina, and, frankly, that is unacceptable,” said Congressman McHenry. “The Commission’s decision defies basic common sense, and poses a serious threat to public safety.”

I suppose, were this congressman to get a guest spot on Grey's Anatomy, he might get the moniker "McMeany." 

In all seriousness, Congressman McHenry's concerns are understandable, but my "basic common sense" tells me that the federal judges in North Carolina and nationwide will, as the USSC urges, give special attention to public safety issues before letting too many dangerous criminals loose on the streets.   

More broadly, this visceral reaction to crack retroactivity spotlights the serious possibility that some members of Congress might make a serious effort to undo the USSC's work yesterday before it becomes effective in March 2008.

December 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (13) | TrackBack

Major media coverage of crack retroactivity decision

As he does so well, Howard Bashman has collected here some of the major media coverage of the US Sentencing Commission's decision to make its new crack guidelines retroactive.  The Washington Post has this front page article, which includes a number of notable quotes:

"Making the revised guidelines for crack cocaine retroactive will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release," Craig S. Morford, acting deputy attorney general, said in a statement released by the Justice Department. "These offenders are among the most serious and violent offenders in the federal system."...

"The profound reason why we should get this retroactive application is it is the right thing to do," Vice Chair Ruben Castillo said minutes before the vote.  "We should constantly strive to make sure that race plays no role in the day-to-day operation of the criminal justice system."

Commissioner Beryl A. Howell called the vote "one of the most important decisions the commission has made" during her three years of service. She noted that the panel contributed to the disparity by establishing guidelines that were even more severe than what Congress allowed for in the Anti-Drug Abuse Act of 1986....

But the change is not a "get out of jail free" card, said commissioner Michael E. Horowitz. "Not everybody is automatically entitled to this reduction," he said, explaining that federal judges, many of whom supported making the guidelines retroactive, will decide cases individually on merit....

Karen Garrison, a D.C. mother whose twin sons, both Howard University graduates whose convictions were based on witness testimony, said: "This is the first time I have really been excited about anything." Lamont Garrison's 19-year sentence could be reduced by four years, and Lawrence's sentence could be reduced by three.  Secoya Jenkins, 16, of Orange, N.J., smiled broadly and said, "I'm excited because my mom is coming home." Nerika Jenkins, 35, also convicted because of witness testimony, is serving a 19-year sentence.

"It is a remarkable day," said Marc Mauer, executive director of the Sentencing Project. "While this is only the federal system and it's a small change, it's going to resonate around the world."

December 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Tuesday, December 11, 2007

Some legal particulars around crack retroactivity implementation

In this official press release, the US Sentencing Commission reviews some of the legal particulars involved in its crack retroactivity decision:

Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.  Not every crack cocaine offender will be eligible for a lower sentence under the decision.  A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.  That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety.

The statutory overlay to all this come from this intricate statutory text set out in 18 U.S.C. § 3582(c)(2), which provides:

(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that ... (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

I have added the bold and italics to highlight what seem to be key legal concepts going forward.  Specifically, now that the USSC has made the guidelines retroactive, district courts can entertain what might be called a "modification motions" or a "3582(c)(2) motions" and may reduce a prison term if and when doing so is consistent with the Commission's policy statements (which were apparently issued today and emphasize consideration of public safety).

A few circuit rulings have suggested that full Booker resentencings should be the result of these modification motions, but I am not sure the statutory text supports this view.  That said, though, some defendants may develop creative constitutional or statutory argument to try to max out the possible benefits flowing from the USSC's new guidelines.  Stay tuned.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (17) | TrackBack

Official USSC press release on crack retroactivity

The Sentencing Commission's website now has this official press release about today's retroactivity decision.  Here are lengthy excerpts from a thoughtful official explanation of what this means:

The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses.  Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.  Not every crack cocaine offender will be eligible for a lower sentence under the decision.  A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.  That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety....

On November 1, 2007, after a six-month congressional review period, the Commission’s amendment to the Federal sentencing guidelines for crack cocaine offenses took effect. The amendment was intended as a step toward reducing some of the unwarranted disparity currently existing between Federal crack cocaine and powder cocaine sentences. The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders, as this amendment could.

The Commission made its decision on retroactivity of the crack cocaine amendment after months of deliberation and years of examining cocaine sentencing issues.  It solicited public comment on the issue of retroactivity and received over 33,000 letters or written comments, almost all of which were in favor of retroactivity....

The Commission considered a number of factors during its deliberations, including the purpose for lowering crack cocaine sentences, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment.  Mindful of public safety and judicial resource concerns, the Commission today issued direction to the courts on the limited nature of this and all other retroactive amendments and on the need to consider public safety in each case. The Commission delayed the effective date of its decision on retroactivity in order to give the courts sufficient time to prepare for and process these cases.

The Commission’s actions today, as well as promulgation of the original amendment for crack cocaine offenses, are only a partial step in mitigating the unwarranted sentencing disparity that exists between Federal powder and crack cocaine defendants. The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (9) | TrackBack

Time for a round of applause and some sympathy

As we await further specifics on the US Sentencing Commission's crack retroactivity decision (which I hope will appear on its website soon), I have to applaud the work of both "USSC"s this week: the rulings in Gall and Kimbrough yesterday by the US Supreme Court struck me as very sound, and the decision today by the US Sentencing Commission to give retroactive effect to its new crack guidelines also seems wise from a number of perspectives.  Both institutions merit special praise for achieving near consensus in its decisions: Gall and Kimbrough were the least divided or divisive sentencing rulings from the Supreme Court in nearly a decade, and the Commission managed to engineer a partial crack fix that garnered broad support and (so far) has not prompted any serious political backlash.

Along with applause for these folks inside the Beltway, everyone should now have lots of sympathy for the judges, lawyers, probation officers and others around the nation who will have to deal with the significant practical fall-out from a historic week of federal sentencing.  Implementing on a case-by-case basis the new crack guidelines to previously sentenced defendants will not be easy and will surely generate complicated legal issues.  Similarly, though Gall and Kimbrough help clarify some additional post-Booker realities, they still leave plenty of questions to consider (and reconsider) in lower courts.  In other words, a nice bottle of wine (or maybe a Starbucks gift card) would be a great holiday gift for anyone you know who works in or around the federal criminal justice system.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

USSC unanimously votes to make new crack guidelines retroactive...

Though I am relying here on second-hand reports, I have now on pretty good authority from two sources that the US Sentencing Commission today voted to make its new crack guidelines retroactive.  Here's what I received from one of these reputable sources:

The vote is yes — they have made the amendment retroactive effective March 3, 2008.

They also promulgated an application note intended to restrict resentencings exclusively to the issue of the two-level reduction. It makes public safety a central concern for courts to evaluate when reconsider these sentences.

Assuming this report is accurate, this strikes me as another example of the Commission's commitment to justice being effectively implemented with political savvy.  It also makes me wonder whether Senator Hillary Clinton or anyone else who has come out against retroactivity might try to get Congress to overturn this decision before it will become effective in three months.

UPDATE:  FAMM has this press release discussing the decision on its website.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (10) | TrackBack

In praise of the USSC's recent crack work (so far)

As I await word on the US Sentencing Commission's hearing on crack retroactivity this afternoon (background here and here and from TalkLeft here), I want to take just a moment to praise the USSC's work on this important issue.  Though I have often been (justifiably?) hard on the Commission's post-Booker efforts, I have been quite impressed with both the commitment to justice and the political savvy shown by the Commission throughout 2007. 

I have argued in a number of recent articles (such as "Tweaking Booker..." and "Beyond Blakely...") that the Commission can and should be a leading voice for sound sentencing reforms in the wake of the Supreme Court's Blakely/Booker jurisprudential earthquake.  Though I hope and wish the Commission will get serious about deep systemic reform of a number of federal sentencing problems, its attentiveness to the crack/powder disparity shows that it is not afraid to take on a politically-charged issue when a true commitment to justice demands action.  Especially impressive has be the transparency with which the USSC has proceeded in the crack arena, informing all interested persons about its plans and giving everyone a reasonable opportunity to weigh in.

Of course, I may have to take back all this praise if the USSC does not have sufficient courage to make its new guidelines retroactive.  However, I am cautiously optimistic that the USSC will have the courage of its convictions and will enable previously-sentenced defendants to be eligible to get the benefit of the improved (though still imperfect) new crack guidelines.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (12) | TrackBack

A preview of USSC crack retroactivity vote

As spotlighted here, the US Sentencing Commission has this public meeting scheduled for 3:30pm today, at which it seems likely to resolve whether its new crack guidelines can be applied retroactively.  A few new stories covering this consequential issue include this AP story, " Panel Weighs Easing Old Crack Sentences," and this ABC News piece, "Panel to Consider Crack Sentence Reductions."

Here is an abridged account of some of my prior blog coverage:

No matter what the USSC decides this afternoon, this story is going to march on.  There will surely be a lot of lower court litigation (and likely some disparate legal rulings) regardless of whether the USSC makes its new crack guidelines retroactive.  But, critically, what the USSC decides will set the terms of debate and the broader tone of this inevitable litigation.

December 11, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wednesday, December 05, 2007

USSC public hearing next week to discuss crack retroactivity

Mark your calender, sentencing fans:  as noted on the US Sentencing Commission's website, "a public meeting of the Commission is scheduled for Tuesday, December 11, 2007, at 3:30 p.m., in the Mecham Conference Center, Thurgood Marshall Federal Judiciary Building, Washington, D.C."  This official notice provides a bit more background and this enticing agenda:

I think this means we could have a decision on crack retroactivity as early as next week.  But the word "possible" in the agenda, of course, might mean that the issue may not be settled that soon.

Some recent related posts:

December 5, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Tuesday, December 04, 2007

More questions about Clinton's opposition to crack guideline retroactivity

This post at the Drug War Chronicle blog asks "Is Rudy Giuliani Shaping Hillary Clinton's Stance on Drug Laws?".  The post notes that Clinton's team has defended her opposition to the new crack guidelines being retroactive by citing Giuliani's apparently similar position.  Here is the potent end to the potent post:

We must now ask ourselves to what extent Hillary's other drug policy positions have been shaped by Rudiphobia.  When she raised her hand in opposition to marijuana decrim, was that for real? Was there a little Giuliani in a devil suit whispering in her ear, threatening to tell the swing voters what a hippie she is?   Will she backtrack on medical marijuana and needle exchange if Giuliani says he disapproves?

We can spend eternity smashing minority communities with our drug war hammers at the behest of authoritarian demagogues like Rudy Giuliani. And if no one speaks up, that's exactly what will happen.  So if Giuliani wants to publicly embrace racist drug war politics, let him.  The antidote to the "soft on drugs" label is to stop looking over your shoulder and start speaking with conviction.

Some recent related posts:

UPDATE:  I now see that Celeste Fremon has picked up on this issue in this post at The Huffington Post.  I will remain intriguing to see if this issue continue to have traction since, as detailed in this item from Politico, suggesting that "one of Clinton's real vulnerabilities [is the] perception that she's driven by polls, not conviction."

December 4, 2007 in Campaign 2008 and sentencing issues, New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

Monday, December 03, 2007

Seeking to clear up Clintonian confusion on crack retroactivity

In the wake of crack retroactivity discussion by the Democratic presidential candidates, the ACLU has issued this new press release to "correct misconceptions about retroactivity."  Here are excerpts:

  • All offenders would first have to go before a court to have their case reviewed and argue that they are fit to be freed.  People would not automatically be released from prison. Offenders who qualify for release under the new guidelines would have to appear before a judge, who would make the decision as to whether the person should be released from prison.

The following can be attributed to ACLU Legislative Counsel Jesselyn McCurdy:  "The USSC changed the crack cocaine sentencing guidelines last month because the commission realized they were unfair. It makes no sense to call a law unjust and in the same breath say it should still apply.  Retroactivity doesn’t mean prisoners will be released en masse; it means the mistakes in sentencing that have gone unchecked for decades will be corrected. Prisoners arrested for federal crack cocaine offenses who have served their time should serve only their time."

Though the press release does not fully explain who may be responsible for "misconceptions about retroactivity," it is obvious that Hillary Clinton is the chief culprit.  As previously discussed here, Clinton this past weekend echoed comments by President Bush's Justice Department (noted here) and Republican members of the House Judiciary Committee (noted here) when indicating she is against retroactive application of the USSC's new crack guidelines.

I am pleased to see the ACLU trying to make sure facts and not fear drive this important sentencing reform discussion.  I hope other sentencing reform groups like FAMM and The Sentencing Project will follow suit.

December 3, 2007 in Campaign 2008 and sentencing issues, New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

Sunday, December 02, 2007

A retroactive litmus test on leading Democratic candidates

anIf this blog post from The Atlantic Online is accurate, it confirms my deep concerns about how Hillary Clinton would approach crime and punishment issues as president.  The post is titled "Clinton, Obama, Edwards Differ On Retroactivity," and it reports that "Clinton opposes [retroactivity of the USSC's new crack amendments], and Edwards and Obama support it."

So, assuming this is accurate, let's review the line-up: the prominent opponents to retroactivity for the new USSC guidelines are President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and now Senator Hillary Clinton.

As I have detailed in prior posts (some of which are linked below), I have long been troubled by the Clinton "brand" when it comes to criminal sentencing issues.  But, of course, most of the troublesome record on these issues involved decisions by Hillary's husband.  Now, assuming this blog report is accurate, we have a very strong basis to believe that Hillary herself favors tough-on-crime rhetoric over sound sentencing policy.  Now who should be accused of taking a page out of the Republican play book?

Some recent posts on crack guideline retroactivity issues:

Some recent posts on sentencing politics in the 2008 campaign:

UPDATE:  I now see that this item at Politico has more on this story.  Here are some telling details:

Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges.  "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well." 

In an interview after the debate, Clinton's pollster, Mark Penn, pointed out that the Republican front-runner has already signaled that he will attack Democrats on releasing people convicted of drug crimes.

Her five rivals present on stage — Illinois Sen. Barack Obama, Connecticut Sen. Chris Dodd, former North Carolina Sen. John Edwards, New Mexico Gov. Bill Richardson, and Ohio Rep. Dennis Kucinich — all said they favor making the shorter sentences retroactive.

"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."

So, besides suggesting that Hillary Clinton gets her crime and punishment ideas from the Giuliani campaign, this issue ought to help Democratic primary voters who care about principled sentencing reform know that not all the candidates are the same.  (I am now wondering if keep prison populations growing is part of Hillary's universal health-care plan.)

MORE:  I am pleased to see TalkLeft picking up this story, calling Clinton's position "a huge disappointment."  I also see MyDD has this post saying that "Hillary's position is really astonishing."  I hope other prominent political bloggers will keep on this important issue which provides, at least for me, a great litmus test on true principle versus (mis-perceived) political pragmatism.

December 2, 2007 in Campaign 2008 and sentencing issues, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (16) | TrackBack

Monday, November 26, 2007

Inside the Beltway views on crack amendment retroactivity

In addition to the Justice Department, some members of Congress have expressed opposition to the US Sentencing Commission making its new crack guidelines retroactive.  In an letter to the USSC Chair earlier this month (and available for download below), 13 members of the House urged the USSC "not to apply this amendment retroactively."  Avid sentencing fans will not be surprised by the names appearing on this letter.

Download crack_powder_retroactivity_letter.pdf

Meanwhile, today's Washington Post has this new editorial urging the USSC to make the new guideline retroactive and urging further congressional action on crack sentences.  Here is how it starts:

This month, a measure of rationality was injected into federal sentencing guidelines when more lenient penalties for crack cocaine became the law of the land.  The new guidelines will affect defendants convicted in the future, but they also should be made retroactive.  That would bring some measure of equity to thousands of offenders -- roughly 85 percent of them African American men -- already serving unjustifiably long prison terms.

Some recent related posts:

November 26, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Wednesday, November 21, 2007

Transcript from USSC hearing on crack retroactivity

Many folks this holiday season are likely thankful that the US Sentencing Commission seems poised to make its new crack guidelines retroactive.  And, thanks to the magic of websites, these folks can now read a transcript from the USSC's November 13, 2007, public hearing on this issue at this link.

Some recent related posts:

November 21, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Monday, November 19, 2007

Thoughtful review of crack amendment retroactivity debate

At FindLaw, Mark Allenbaugh and Paul Hofer have this effective new piece discussing the debate over the US Sentencing Commission's new crack amendments.  The piece is entitled "The U. S. Sentencing Commission Considers Shortening Terms for Imprisoned Crack Offenders: Should the Reduction of the Disparity Between Crack and Powder Cocaine Sentencing Be Retroactive?". Here are excerpts:

On November 13, the Commission held a day-long hearing in Washington, D.C., to consider the retroactivity question, after having received over 30,000 letters in support of retroactivity....

The hearing demonstrated the willingness of the Commission, the federal judiciary, the defense bar, and many others to work together to correct a longstanding injustice in federal sentencing. Despite these efforts, however, the Commission made clear when it promulgated the crack amendment that it represents "only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress." In particular, the mandatory minimum penalty statutes need to be repealed or amended to reflect the actual seriousness of crack offenses.

The behavior of offenders who benefit from the Commission's actions through early release will also affect future efforts to reform our nation's harsh drug laws.  All eyes will be on them to see how responsibly they handle the earlier freedom the Commission might make possible. A return to addiction or crime will make future reform more difficult, and will disappoint the many supporters who worked to make crack penalties more just.

Near the end of the hearing, Julie Stewart, testifying for Families Against Mandatory Minimums, asked persons in the audience with family members in prison to stand and make their presence known.  The room fell silent as mothers, fathers, siblings, and children who had traveled to Washington from around the country rose and held aloft pictures of their loved ones who are still behind bars.

Some recent related posts:

November 19, 2007 in New USSC crack guidelines and report | Permalink | Comments (15) | TrackBack

Wednesday, November 14, 2007

Media coverage of crack retroactivity hearing

How Appealing collects here some of the major media coverage of yesterday's debate over retroactive application of the new crack guidelines before the US Sentencing Commission.   This Washington Post piece provides this information about a likely timeline for the USSC's decision:

The commission, comprising seven voting members appointed by President Bush and former president Bill Clinton, is scheduled to meet today, but a vote on retroaction is unlikely.  Individuals familiar with the panel's deliberations who spoke only after receiving a promise not to be identified said the commission is likely to vote on retroaction in January. A spokesman for the group declined to discuss its plans.

Meanwhile, this New York Sun piece suggests that Rudy Guiliani is against retroactivity, although it appears the paper is itself trying to drum up a controversy"

In response to a question from The New York Sun yesterday, Mr. Giuliani said he was not familiar with the details of the proposal, but added that his experience as a prosecutor made him wary of a surge of thousands of ex-offenders onto the streets.

Some recent related posts:

November 14, 2007 in New USSC crack guidelines and report | Permalink | Comments (8) | TrackBack

Tuesday, November 13, 2007

A report on the USSC crack retroactivity hearing

I am pleased to be able to provide, thanks to a person self-described as a "DC Wonk," this informative report sent to me by e-mail concerning today's US Sentencing Commission hearing about the possible retroactive application of the new crack guidelines:

I have no experience reading tea leaves, but it sure seemed to me that the USSC is grappling with *how* to implement retroactivity, not *if* they should.  That they will vote to implement seems a foregone conclusion.

The major issue seemed to be: would Booker apply to an inmate who was initially sentenced before Booker, and is now applying to get his sentenced reduced under retroactive application of the two-level reduction.  Those who are against retroactivity argued that "of course it applies," as they tried to demonstrate the huge caseload that will clog up the entire federal court system. (Repeated cites to the figure of 19,500 to whom retroactivity might apply.) One of the commissioners noted that Booker would apply according to Hicks, but that Hicks is only applicable in the 9th Circuit where only 500 of these 19,500 are; but that the 4th Cir views otherwise, and 5,000 (of the 19,500) reside there.

Another interesting observation: for the most part everyone was polite and cordial, with one exception. The spokesperson for DOJ, the USA from West NC was pretty extreme in her language (most of her presentation was anecdote) and a bit misleading with some of her stats.  She was the only witness (as of 1:00 pm) to face any hostile questioning. If anyone was wavering (itself a dubious proposition), she did her cause damage.

Most interesting was Prof Chanenson (Villanova) who argued that 3582(c)(2) was *not* a resentencing, but more like an "equitable sentencing procedure", and therefore Booker had no relevance, and that the USSC and/or Congress would have the right to make this retroactivity fairly restrictive (so as to minimize the burden on the courts, on the Marshals who have to transport prisoners, etc.)  The Prof had a number of other suggestions to minimize the impact of resentencing on the federal system, and the USSC seemed most interested....

All in all, a few commissioners seemed to almost openly support retroactivity (particularly Castillo, Howell, and Sessions); I suspect Hinojosa is sympathetic (although he was "above it all" as chair); John Steer said that he agreed with the Prof that Booker wouldn't apply; Horowitz seemed sympathetic; Friedrich asked a question that was unflattering to DOJ.

In summary here: there were some statements that seemed to indicate favor to retroactivity, and some neutral. I didn't see any from any Commissioner to indicate s/he was against. I find it hard to see how anyone can scrounge four votes against retroactivity....

I am very pleased to hear that the Commissioners were in sync with Professor Steve Chanenson's insights.  I had the good fortune to talk with Steve as he was putting together his testimony, and I agreed with 99.9% of what he was planning to say to the USSC.  I have provided for downloading below Steve's written testimony, which is both effective and fascinating on many levels.

Download chanenson_ussc_testimony_november_13_2007.pdf

November 13, 2007 in New USSC crack guidelines and report | Permalink | Comments (27) | TrackBack

Monday, November 12, 2007

USSC hearing testimony on crack amendment retroactivity

Over at its website, the US Sentencing Commission now has lots of the witnesses' written testimony linked to this planned agenda for the all-day public hearing tomorrow at Georgetown University Law Center concerning whether the USSC's new crack guidelines should be applied retroactively to previously sentenced defendants.  I do not see anything too surprising in the testimony now linked there, though I still expect the hearing will be quite eventful (especially with FAMM encouraging its members to attend).   

I hope attendees will take good notes and perhaps send me reports for posting.  I am especially interested to hear if the Commissioners indicate when they expect to make their decision on retroactivity.   As this article in the Los Angeles Times highlighted this morning, this crack retroactivity decision may be the single most consequential decision to be made by the USSC since the initial guidelines were first promulgated 20 years ago.   (This archive of my crack coverage provides plenty to review in anticiaption for Tuesday's hearing.)

UPDATE:  The Washington Post has this front-page article in its Tuesday edition entitled "Sentences For Crack Offenses Studied; Thousands Could Be Released Soon."  The piece highlights the racial dimensions of the retroactivity issue: "Nearly 86 percent of inmates who would be affected by the change are black; slightly fewer than 6 percent are white.  Ninety-four percent are men."

Also, the Post has this strong op-ed by former Judge Paul Cassell entitled "Repairing a Crack in the System."  He responds to some of the Justice Department's advocacy against retroactivity:

[T]he Justice Department "strongly opposes" such a move. In a letter to the commission, the department expressed concern about the "sweeping impact" retroactive application would have.  This curious, misery-loves-company argument seemingly suggests that the commission should correct small injustices, but not significant ones.

The department also argues that re-sentencing offenders would "impose enormous and unjustified costs" on the federal court system.  But even the department's possibly exaggerated estimate, in the millions of dollars, would be dwarfed by the more than $1 billion that could be saved by releasing prisoners early from expensive prison cells.

November 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Effective coverage of crack retroactivity debate

The Los Angeles Times has this new extended article highlighting the import and significance of the debate over whether to make the new crack sentencing guidelines retroactive.  Here are snippets of the piece:

Under pressure from federal judges, inmate advocacy groups and civil rights organizations, federal authorities are considering a sweeping cut in prison sentences that could bring early release for thousands of federal inmates.

The proposal being weighed by the U.S. Sentencing Commission would shave an average of at least two years off the sentences of 19,500 federal prisoners, about 1 in 10 in the 200,000-inmate system. More than 2,500 of them, mainly those who have already served lengthy sentences, would be eligible for release within a year if the rule is adopted....

The congressionally chartered commission, which sets sentencing guidelines for federal judges, has already adopted reduced penalties for new crack cases hitting the courts effective Nov. 1. That decision will affect about 4,000 a cases a year.  The debate now is about its plans to make those changes retroactive to inmates.  The seven-member commission is considering the proposal at a hearing Tuesday; a vote is expected next year....

The widely differing treatment of crack offenders is "fundamentally unjust," said Reggie B. Walton, a federal judge in Washington.... "It is one of the very important civil rights issues of our day," said Hilary O. Shelton, director of the Washington office for the National Assn. for the Advancement of Colored People, which has long pushed for changing cocaine laws.

Some recent related posts:

November 12, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Thursday, November 08, 2007

More of the crack facts and retroactivity arguments

The latest issue of Time has this article on the new crack guidelines, which includes this effective analysis of what's happening:

Drug dealers are bad guys, but even they should be treated fairly.  That's why advocates of sentencing reform are cheering a recent federal move to narrow the jaw-dropping disparity in sentences for trafficking in two versions of the same drug, cocaine. But it's way too early for them to be declaring victory... [W]hile the new guidelines have reduced the penalties above the mandatory minimums, those minimums are still firmly in place....

What's more, even the changes in the guidelines will have only a limited effect unless the sentencing commission makes them retroactive — an issue it is expected to discuss at a Nov. 13 meeting.  As of now, the new guidelines will affect only new offenders.  If the commission decides to go retro, the move could shorten the prison terms for some 19,500 inmates by an average of 27 months.

On the "retro" front, the Sentencing Commission has now made available here some of the comments it has received from "the judiciary, the executive branch, interested organizations, members of the defense bar, and individual citizens."   I especially liked Judge Richard Kopf's to-the-point pitch for retroactivity:

I urge the Commission to make the "crack" amendments to the Guidelines retroactive.  Even though that will mean more work for judges, every conception of justice of which I am aware justifies such an action.

On its main webpage, the USSC also notes that it "received more than 33,000 letters from individuals expressing their views on retroactivity."  Next week's USSC hearing on these issues ought to be a doozy.

Some recent related posts:

November 8, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack