Tag: crack cocaine penalties (page 2)

By a unanimous vote, the U.S. Sentencing Commission has made its November, 2007 reduction in crack cocaine penalties retroactive. The effective date is March, 2008. The statement is here.

This is very good news, but note the limitations:

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. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.

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Update: The Commission has unanimously voted for retroactivity. Press Release is here. Reaction and newer post here.

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[Note: This is a long post, covering the issues of the guidelines, mandatory minimums, the informant system of sentence reduction and the need for Congress to act to change the law.]

The U.S. Sentencing Commission will vote today on whether to make the recently enacted small (two level) guideline reduction for crack cocaine offenses retroactive so that some of the 19,500 inmates currently serving federal crack sentences can benefit from it. It is widely expected they will vote for retroactivity and I'll update and bump this post when they do.

The thing to remember is, this doesn't solve the problem. The much bigger problem is with mandatory minimum sentences. Only Congress can change those. Neither yesterday's Supreme Court decisions nor the guideline reduction addresses this problem. Today, like yesterday, judges are powerless to go below the 5 or 10 (or in some cases 20) year mandatory minimum sentence unless the defendant cooperates with the Government and the Government asks the judge to impose a lower sentence. The judge can't do it on his own -- or at the request of a defendant. That's just wrong-headed.

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The Supreme Court today affirmed rulings of two district court judges in cases in which they had granted downward departures from the federal sentencing guidelines. One case involved crack, the other ecstasy.

The cases are Kimbrough v. U.S., 06-6330 (opinion here, pdf) and Gall v. U.S., 06-7949, opinion here (pdf).

In Kimbrough, the Court had imposed a 15 year sentence instead of the 19 to 22 years called for by the guidelines. In Gall, the Court granted probation instead of a 30 to 37 month sentence.

Scotus Blog explains the decisons. Law Prof Doug Berman of Sentencing Law and Policy is very excited and will have a lot of commentary as soon as he's digested the opinions.

Tomorrow, the U.S. Sentencing Commission will announce its decision on whether its recent crack cocaine guideline reduction will be retroactive and thus apply to the 19,500 crack offenders now in federal prison.

Update: Two quotes from Kimbraugh on the difference between mandatory minimums and guidelines and ability of judges to consider the disparity between crack and powder cocaine penalties:

Unfortunately, Hillary Clinton in Iowa yesterday said she has problems with making the reduction in crack-powder cocaine penalties, minimal as they are, retroactive.

“In principle I have problems with retroactivity," she said. "It’s something a lot of communities will be concerned about as well."

Five other Dems at the forum favor retroactivity:

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.

Hillary needs to rethink this. As Law Prof Doug Berman says at Sentencing Law and Policy, her position is a huge disappointment. But I'm not convinced Obama's position will result in any future change of the excessive mandatory minimum sentences (as opposed to the minimal guideline reduction) for crack offenses. [More...]

The U.S. Sentencing Commission is holding a hearing today on whether to make the November 1 sentencing guideline reductions for crack cocaine retroactive. (Background here.)

You can read all of the letters submitted to the Commission for today's hearing here. I think the Commission will decide in favor of retroactivity. If so, it will be a huge policy decision.

Such a mass commutation would be unprecedented: No other single rule in the two-decade history of the Sentencing Commission has affected nearly as many inmates. And no single law or act of presidential clemency, such as grants of amnesty to draft resisters and conscientious objectors after World War II and the Vietnam War, has affected so many people at one time.

Retroactivity will be of some help to many of the 19,500 federal inmates currently serving time for crack offenses. The principal opposition is coming from prosecutors and the Justice Department, hardly a surprise.

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(larger version here.)

Via Sentencing Law and Policy, the Criminal Law Committee of the Judicial Conference ( a body of federal judges established by Congress with the purpose of enacting policy for our federal courts) is urging the Sentencing Commission to make the recent reductions in crack cocaine sentencing guidelines retroactive. The letter is available here (pdf.)

There are 19,500 inmates serving time for crack cocaine in federal prisons. Some other good links:

• Sentencing Project and its letter (pdf)to the Commission urging retroactivity. It's crack reform sentencing page is here.

• Families Against Mandatory Minimums

[Cross-posted earlier today at Firedoglake.com]

Finally, a little relief is at hand for the vastly disparate and draconian crack cocaine sentences meted out by federal courts. New federal sentencing guidelines for crack cocaine offenses went into effect today.

Starting today, many offenders sentenced in federal court for crack will receive a sentence about 16 months less than they would have yesterday.

By way of background, through mandatory minimum sentencing laws, the Feds have punished crack crimes far more severely than those involving powder cocaine. The U.S. Sentencing Commission followed suit by enacting guidelines that matched the mandatory minimums.

A crime involving five grams of crack cocaine carries a mandatory sentence of five years in prison, and 50 grams carries a 10-year penalty. However, it takes 500 and 1,000 grams of powdered cocaine to trigger the same five and 10 year sentences.

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On November 1, the Sentencing Guidelines for crack cocaine will drop two levels. Not enough to make up for the outrageous disparity between crack and powder guidelines, but a good start.

The remaining question is whether the guideline change will be retroactive and apply to the 19,500 previously sentenced defendants.

The Commission will hold a public hearing on November 13 (pdf.) Sentencing Law and Policy has the details.

A few faces of past clients flashed in front of me as I read the letter the ABA has sent to the U.S. Sentencing Commission (available here) urging that their planned reduction of crack cocaine penalties be made retroactive.

While the planned reductions are tiny compared to what they should be, I'm sure any relief would be appreciated by the thousands of inmates who are languishing in our prisons serving draconian sentences for non-violent crack crimes.

In 2002, the Sentencing Commission recommended a greater reduction but it never happened. It recommended:

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I haven't been excited about the U.S. Sentencing Commission's long awaited report urging a slight reduction in crack cocaine penalties, because the reduction is just that: slight.

The report was forwarded to Congress today. You can read it here.

From a policy perspective, as the ACLU says, it's a good first step, but that's all it is.

But 2007 marks the fourth time in 20 years that the commission has issued such a report, and Congress has yet to address the problem. Years of medical and legal research have shown no appreciable difference between crack and powder cocaine, and no justification for allowing the vast sentencing gap between them to stand. We urge Congress to put aside politics and act now to fix this discriminatory federal drug sentencing policy."

From the practical standpoint of my clients and everyone else's clients doing double-digit sentences, it only takes a year or two off.

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Before you get too excited, count me in the group (I hope there will be one) that is unimpressed with the action taken last night by the U.S. Sentencing Commission to reduce crack cocaine penalties.

If I understand Law Prof Doug Berman's description (he's excited about the change) the mandatory minimums will stay in place and the reductions are these:

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