Sentencing Commission Hearing Today on Retroactivity of Crack Guidelines

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.


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:

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.

< DNC Media Walk-Through | Herbert Must Reading Today >


Should Congress Repeal Mandatory Minimums?
No, The Crack Reduction Is Sufficient, No further action is needed 10%
Yes, Congress should repeal mandatory minimum drug sentences for non -violent and first offenders 50%
No, the penalties need to be enhanced. We should give them life plus cancer. 0%
Yes, They should be repealed for everyone 40%

Votes: 10
Results | Other Polls
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    And how much is economics to blame? (none / 0) (#1)
    by SeeEmDee on Tue Nov 13, 2007 at 08:13:15 AM EST
    During the go-go 1980's and '90's, the country was in a lock-'em-up prison building binge, fueled by the economy at the time. Now the economy isn't doing so well, so now we are re-examining the laws that put so many people behind bars? Wasn't the time to do so before the binge?

    In an aside, if you think revisiting the crack sentencing laws will be fun, wait until cannabis prohibition is put on trial, as it should have been long ago. Seeing as cannabis prohibition was based on a tissue of lies ("Marijuana makes you an ax murderer!", "Marijuana makes you a Commie pinko limp-wristed pacifist!", "Marijuana makes White wimmin have sex with Nee-groes!", etc.), then its' proponents couldn't stand 20 minutes of cross-examination as to why it should be continued. They'd be laughed out of court...or branded as bigots for enabling the polices of long-dead racist crackers.

    What do you do (none / 0) (#2)
    by NMvoiceofreason on Tue Nov 13, 2007 at 08:29:58 AM EST
    for the lucky guy or gal who has stayed past the time they would have been let out, if you had only made up your mind it was unfair, a day, a month, a year earlier?

    Traditional lawyer reasoning is that you are now getting a benefit you could not have expected, so no blood, no foul.

    Is that what you are going to say when they weigh your heart against a feather in the afterlife?

    About that (none / 0) (#3)
    by NMvoiceofreason on Tue Nov 13, 2007 at 08:32:29 AM EST
    sex with negroes thing, does it really work?

    How about the surge, is that still working?

    Sometimes, when you have been lied to enough, it is hard not to believe a little, even if you know better.

    retroactive sentence changes (none / 0) (#4)
    by diogenes on Tue Nov 13, 2007 at 12:04:08 PM EST
    If the law RAISED the sentences, even for a good reason, you'd all say that it was a violation of the law and an injustice to retroactively raise the sentences of already sentenced inmates.
    This is a very BAD precedent-one day someone will raise the sentence for some crime.  

    ex post facto doctrine (none / 0) (#6)
    by Deconstructionist on Tue Nov 13, 2007 at 12:58:51 PM EST
     prohibits subsequent enforcement of measures increasing sentences or creating new offenses.

     PEOPLE have constitutional proterctions; government is limited by the Constitution.

      I have previously pointed out that the "no mandatory minimums" argument fails logically and practically. It's simple-minded to the extreme. However, THESE particular mandatory minimums based upon arbitrary (and relatively small) quantities of certain substances share the same defect.

       The crack/powder distinction should be totally eliminated. Early anectdotal claims that crack is more dangerous or more addictive have been repudiated by empirical research. Perhaps more importantly, the current laws turn common sense on its head. We all know that the largest scale smugglers and distributors NEVER have crack penalties applied to them because the conversion to crack takes place one sometimes 2 levels above the corner street sale, so the people hit with the crack penalties are the low level street pushers while the real kingpins are subject only to the lesser powder penalties. That makes no sense.



    pardon (none / 0) (#5)
    by diogenes on Tue Nov 13, 2007 at 12:05:20 PM EST
    Hey-if it's such a good idea to let these people free then put it in the Democratic platform, and the Democratic president can pardon them all on January 21, 2009.

    Manditory Mininum (none / 0) (#7)
    by squeaky on Tue Nov 13, 2007 at 01:06:42 PM EST
    To assuage your "white guilt"? Put em in jail by profiling so that having lynched them without a trial seems like it was not so crazy.
    They are mostly criminals as the arrest statistics show, or could it be that the system is rigged against the black and poor.

    Evidently there are about 19,500 federal drug (none / 0) (#10)
    by JSN on Tue Nov 13, 2007 at 05:49:15 PM EST
    prisoners where the crack/powder ratio applies. There are not that many federal drug prisoners where the most serious crime is drug possession so most of these inmates must have been charged with drug trafficking. An important issue is the amount of drugs it take to give the presumption of trafficking instead of possession.

    The DOJ did a study of federal and state drug prisoners and concluded that about 20% to 25% had prior arrests/convictions for violent crimes. If they had only included prior convictions the percentage would be smaller and IMHO they would have made a stronger case because in many arrests some of the charges are dropped. I suspect this older study has been used to argue against making the sentence reduction retroactive.

    The criminal justice system has always been biased against the poor. Cops were invented to keep the poor from stealing from the rich.


    I was at the hearing this morning (none / 0) (#8)
    by A DC Wonk on Tue Nov 13, 2007 at 01:31:54 PM EST
    ... and it seemed to me that the Commission is very much in favor of applying retroactivity.  It seemed that the only real issue was how to do it (i.e., with application guidelines vis-a-vis applicability of Booker, etc.).  They indeed seemed mostly interested in how to do retroactivity, not if they should do it.

    FWIW, while there were witnesses on both sides of the issue, only one faced hostile questioning, and probably did her side damage: the USA from Western NC, speaking on behalf of DOJ.  She was alarmist, misleading with her stats, and the US Commission members didn't let her get away with it and nailed her (albeit politely . . . mostly).

    If you're interested.... (none / 0) (#9)
    by A DC Wonk on Tue Nov 13, 2007 at 03:28:32 PM EST
    ... see my longer post on the subject at Prof Berman's blog on "Sentencing Law and Policy" at http://sentencing.typepad.com/sentencing_law_and_policy/2007/11/a-report-on-the.html

    retroactivity (none / 0) (#11)
    by diogenes on Tue Nov 13, 2007 at 08:06:33 PM EST
    How many of the "nonviolent" offenders were given a plea bargain by a DA instead of pursuit of charges of violent crime which required potentially intimidatable witnesses/jury trials, etc?
    If the appearance of crack in the 1980's caused a massive crime wave which the appearance of powder in the 1970's didn't, then how are the two "equal"?