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.)

The Sentencing Project has also written a letter (pdf)to the Commission urging retroactivity.

For updates on today's hearing, check Sentencing Law and Policy.

I testified before the Sentencing Commission(pdf) in 1996 on the need to change our mandatory minimum drug law system. (See p. 5.) I was paired against Bob Litt, then with the Justice Department, with whom I then, as now, share a cordial, professional relationship. Several years later we both served on the ABA Criminal Justice Section Board where we agreed on almost everything.

Here's a partial transcript of my comments:

UNITED STATES SENTENCING COMMISSION
Regional Public Hearing - August 12, 1996
Byron White Federal Courthouse, Courtroom 1
1823 Stout Street, Denver, Colorado

I'm Judge Richard Conaboy. I'm chairman of the United States Sentencing Commission. And it's a privilege, as I said, to be here in Denver and to welcome all of you who came here either to talk to us or to listen or to give us some suggestions. We're interested, as we travel around the country, in learning what other people think of the sentencing process in the Federal courts in this country. And we're interested in hearing about what is working well and what isn't working well and suggestions that you might have for us to try to make this process the best in the world.

JUDGE CONABOY: Thank you, Mr. Moore. Ms. Merritt.
MS. MERRITT: I'm going to stand. Mr. Chairman, members of the committee. I appreciate the opportunity to be here today, to appear before you and give you my views on Sentencing Guidelines as they apply to drug offenses.

I have defended persons accused of drug trafficking crimes in this and other Federal districts and circuits for over 20 years. 13 of those years were before the United States Sentencing Guidelines and the last eight of them, of course, have been since then. I've lectured to lawyers around the country on the use and application of the Sentencing Guidelines and I serve as a chair of the legislative committee for the National Association of the Criminal Defense Lawyers.

And as I listen here today to what I've been hearing from the judges, from all of the counsel -- the defense counsel and from the probation officers who have testified is we need to find a way to re-empower the Federal judiciary. This system is not working. The system has broken. My opinion of what is going on with the Federal sentencing system today is that it's becoming morally bankrupt.

There is something wrong with a system that unfairly targets minorities and persons of color and women. There is something wrong with a system that allows the use of purchased testimony. There is something wrong with a system that has transferred the power given to judges by the United States Constitution to prosecutors. And we have to do something to fix it.

One of the things that we have done as part of the legislative work of the National Association of the Criminal Defense lawyers is to draft a proposed piece of legislation that would be an amendment to 18 USC Section 3555 3(E). It has already been endorsed by two members of the Federal judiciary. Judge Hadder from the Central District of Los Angeles and Judge Prado from the Western District of Texas. Both of those judges traveled to Washington, D.C. in May and agreed and did participate on a panel on mandatory minimum sentencing. And what they told us was that 88 percent of the judges in this country have said no more mandatory minimum sentencing statutes should be enacted. 85 percent said judges should have more discretion in imposing Federal sentences. 88 percent said that the current Federal system gives too much discretion to the prosecutors. And 70 percent of the Federal judges opposed maintaining the current system of the mandatory minimum sentences.

Our legislative proposal would allow the judges to depart from mandatory minimum sentences for extraordinary circumstances. Not only upon motion by the prosecutor because of substantial assistance, but because of a motion by the Court on its own motion and because of a defendant's motion.

And what I am asking this Commission here today is for each and every one of you to assist us in finding sponsors among the members of Congress and supporters for this measure so that we can re-empower the Federal judiciary to make the sentencing decision that should be done in this case. In all cases.

.....There are unjust cases that happen every day with the application of the Federal Sentencing Guidelines and most of them are because of the charging discretion given to the prosecutors. Some of the worst abuses are in cases of historical conspiracies, cases in which former co-conspirators testified against the current defendant. We have to do something to change that system.

....There is too much disparity and a change in the entire system must be worked and it must be started soon. There are too many people languishing in our prisons who do not need to be there. Thank you.

[Edited to reflect only parts about mandatory minimums]

After the hearing, Judge Conaboy asked me for a copy of our proposal and said he would see what he could do to get it passed. I have no doubt that he did send the proposal around, trying to garner support. But it never came.

Reducing the crack penalties is just the beginning. A renewed fight to get Congress to change mandatory minimum sentences based on drug quantity alone must come next. Perhaps with the internet's ability to spread the word, it will come, before all those serving life sentences die in prison of old age and can still benefit from it.