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Obama Commutes Sentences of 8 Crack Offenders

President commuted the sentences of 8 crack cocaine defendants today and granted 11 pardons. Here is the list. Obama issued this statement about the crack commutations:

Three years ago, I signed the bipartisan Fair Sentencing Act, which dramatically narrowed the disparity between penalties for crack and powder cocaine offenses. This law began to right a decades-old injustice, but for thousands of inmates, it came too late. If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society. Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.

Today, I am commuting the prison terms of eight men and women who were sentenced under an unfair system. Each of them has served more than 15 years in prison. In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime.

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Sentencing Commission Hearing on Retroactivity of Crack Cocaine Reduction

Today is the day the U.S. Sentencing Commission is holding its hearing on whether the recent reduction of penalties for crack cocaine as compared to powder cocaine, from 100:1 to 18:1, should apply to those convicted of crack offenses before August, 2010, when the change went into effect. The meeting agenda with links to written testimony is here.

Attorney General Eric Holder says the Obama Administration supports retroactivity for some, but not all, crack defendants. [More...]

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Sentencing Commission Fails to Reduce Crack Guidelines For All Defendants

What a mess. The U.S. Sentencing Commission implemented its emergency temporary amendments to the crack cocaine guidelines to comply with the Fair Sentencing Act passed by Congress that reduces the penalties for crack cocaine to be more in line with those for powder cocaine (roughly 18 to 1 instead of 100 to 1) and how did they do it?

They increased the base levels for amounts of crack that included the mandatory minimum threshold amounts from 24 and 30 to 26 and 32 instead of keeping them at 24 and 30. (Text of Amendments here.) What it means: Some crack defendants will see no change in their base offense levels under the Fair Sentencing Act, for example, those with quantities between 28 and 35 grams, 280 and 499 grams and 840 grams and 1.49 kilograms. (See page 9 of the Federal Defender's letter.)

There's also a big risk of double counting due to all the enhancements they threw in (some of which, like "violence" are not even defined.)

The Sentencing Commission asked for public comments on the change. They posed the question as: [More...]

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Congress Passes Bill to Reduce Crack Cocaine Penalties

The House of Representatives has passed S. 1789, the Fair Sentencing Act of 2010. It reduces the disparity between crack and powder cocaine penalties from 100:1 to 18:1. It also eliminates the 5 year mandatory minimum sentence for simple possession of crack cocaine and provides for higher sentencing guidelines for all drugs in some cases.

The bill, a compromise between Sen. Richard Durbin and Jeff Sessions, has already passed the Senate. It will now go to President Barack Obama for his signature. Here's a copy, as introduced in March, 2010.

What about retroactivity? The bill does not provide retroactive relief for those already serving long crack sentences. But I'm not seeing anything in the text prohibiting it, it seems to be silent on the issue. Does the silence mean the Sentencing Commission can decide to apply it to those already in prison? And would it?

The House Floor website says: [More...]

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Supreme Court Rules Amended Crack Cocaine Guidelines Don't Allow for Full Re-Sentencing

The Supreme Court today ruled against Percy Dillon in his challenge to to his sentence for crack cocaine. Details of the case are here.

[T]he issue is whether the two level reduction in federal sentencing guidelines for crack cocaine implemented a few years ago allows judges, when implementing the reduction, to conduct a complete resentencing.

Many defendants were sentenced to huge terms of imprisonment for crack when the guidelines were mandatory. Since Booker in 2005, they have become discretionary. So when a defendant files a motion to have his or her sentence reduced under the guideline amendment, shouldn't the Judge be allowed to resentence under current law, treating the guidelines as advisory only? Put another way, shouldn't Booker be followed for sentencing modification decisions?

The Supreme Court says "No." The opinion, written by Justice Sotomayor, is here.

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Crack Cocaine Sentence Cuts Now Underway

The new sentencing guidelines with reductions in crack cocaine sentences went into effect two days ago.

In two days, the courts have granted 400 motions for sentence reductions. A few inmates have been able to leave jail immediately.

These reductions are modest in size, don't apply to everyone and should be heralded by everyone concerned about justice and fairness. The exceptions, not surprisingly, are the Bush Administration and Attorney General Michael Mukasey, who continue to criticize the reductions.

Sentencing Law and Policy has much more on how the implementation of the reductions is progressing.

I'm looking forward to a Democratic President in November who will provide Congress with an impetus to move on legislation that will eliminate the sentencing disparity between crack and powder once and for all, and also reduce or eliminate the true cancer on the criminal justice system -- mandatory minimum drug sentences.

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Mandatory Minimum Rally In Advance of Hearing Tomorrow

Tomorrow morning, the ACLU will hold a rally in Washington on the unfairness of mandatory minimum sentences, and specifically, the need to repair the 100:1 crack to powder cocaine sentencing disparity.(Received by e-mail, no link yet.)

Speakers at the rally include:

  • Dorothy Gaines, who was charged with conspiracy to deliver crack cocaine due to her then-boyfriend’s alleged participation in a large-scale drug operation as a driver. Ms. Gaines served 6 years of a 19½ year sentence before being granted clemency by President Clinton in 2000.
  • Karen Garrison, whose sons are currently serving 15+ years in federal prison for non-violent crack cocaine offenses.
  • Kemba Smith, who was convicted in 1994 and sentenced to 24.5 years on charges of conspiracy to distribute crack cocaine and related charges after a failed relationship, despite her lack of involvement in any drug dealing operation.

The ACLU's written testimony on the need to reform these draconian, unfair penalties is here.

Several bills to reduce the injustice are pending in Congress. I outlined them here. A hearing is scheduled on them tomorrow before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. [More...]

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Mukasey Asks Congress to Block Release for Non-First Time Crack Offenders

Bump and Update: The ACLU reports on Mukasey's testimony today. The Washington Post and Sentencing Law and Policy have more.

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Original Post: 2/6/08

Bad news from Attorney General Michael Mukasey today. In written testimony to be delivered at a House Judiciary Committee hearing tomorrow, he will ask Congress to block the release of crack offenders currently serving sentences except for first-time, non-violent offenders. It's unclear whether Congress would act in time.

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Crack Cocaine Guideline Reductions and Mandatory Minimums

Adam Liptak in the New York Times has a new column on the recent sentencing guideline reductions for crack cocaine. He posits that as a result of the reductions, Congress may be less likely to reduce mandatory minimum penalties for crack cocaine since Judges now have more discretion in sentencing and Congress won't want to give judges unfettered discretion.

There are several bills kicking around Congress meant to harmonize cocaine sentencing laws. But, perhaps perversely, the Supreme Court’s decisions last Monday may make Congressional action less likely. Letting judges have too much discretion does not sit well with some legislators, and that discretion can be controlled through mandatory minimums.

His source for that theory is former (very conservative) Judge and victims' rights advocate Paul Cassell. I've never agreed with Cassell about anything, particularly his attempts to repeal Miranda rights, push the death penalty and make light of false confessions and wrongful convictions, but I sure hope he's wrong on this one.

Liptak describes the penalties for powder as if they are way too lenient,

Fifty grams of crack equals a guaranteed 10 years. It takes five kilograms of powder to mandate the same sentence. Five kilos is a lot of cocaine.

I think that's a backwards way of looking at it. The better view is that ten years is a long jail sentence -- for any non-violent drug offense, regardless of the quantity.

I'm wondering if Liptak's use of the phrase "a lot of cocaine" is the result of someone whispering in his ear that the only way the crack penalties go down is if the powder penalties go up. That would be a terrible injustice.

The pending reform bills are here. Two call for equalization. The bills could be put on the agenda early next year. It's time to start contacting your Senators and Congresspersons and telling them to equalize the crack and powder cocaine penalties at the current powder levels. Two wrongs don't make a right.

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The Crack-Powder Cocaine Disparity: A Chronology

There will be a Democratic debate tomorrow in Iowa, where the January 3 primary essentially is a toss-up between Hillary Clinton, Barack Obama and John Edwards.

In light of the Supreme Court decision this week in Kimbrough v. U.S. (pdf)authorizing federal judges to consider the great disparity in penalties for crack and powder cocaine offenses in deciding whether to sentence crack defendants below the federal sentencing guidelines ("...it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes") and yesterday's decision by the U.S. Sentencing Commission to make retroactive the recent and relatively minor crack cocaine sentencing guideline reductions, I'm hoping the candidates will be asked their positions on mandatory minimum sentences and what they will do as President to change them.

I've put together a chronology of how the mandatory sentences came about and what efforts to change or resist changing them have been made since.

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How Will the Courts Resentence Crack Cocaine Offenders?

In light of yesterday's decision by the U.S. Sentencing Commission to make the reduction in federal sentencing guidelines for crack cocaine offenses retroactive, many are wondering just how these reductions will be effected.

The Sentencing Commission has answered this in part by modifying U.S.S.G. 1B1.10. Here's the new version. [Note: changed to user friendly link]

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Pending Mandatory Minimum Sentence Reduction Bills

Sen. Edward Kennedy released a statement today praising the Sentencing Commission's retraoctivity decision regarding the minor reductions in crack cocaine sentencing guidelines. He also urges passage of S. 1685 which he co-sponsored with Diane Feinstein, Arlen Specter and Orrin Hatch (that ought to tell you right there it's not a good bill.)

The bill insufficiently cuts the disparity between crack and powder. Instead of 5 grams of crack, the threshold for the 5 year mandatory minimum sentence would be 25 grams. For powder, it's currently 500 grams.

Instead of 50 grams of crack, the bill makes the threshold for the 10 year mandatory minimum sentence 250 grams. The threshold for powder is currently 5 kilograms (5,000 grams.)

The bill does eliminate the mandatory minimum for first timers who possess for personal use.

Joe Biden's bill, S. 1711, co-sponsored by John Kerry, Russ Feingold and Carl Levin is better. It equalizes the penalties between crack and powder at the current powder levels. But, the reductions are not retroactive, so they won't help the 19,500 offenders currently serving the disparate sentences.

And, as usual, Biden can't leave well enough alone. He has to go and increase funding for the war on drugs. [More....]

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Sentencing Commission Makes Crack Penalty Reductions Retroactive

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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Crack-Powder Guideline Retroactivity Ruling Expected Today

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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Supreme Court Okays Departures in Drug Cases

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:

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