Sentencing Commission Seems Likely to Make Crack Amendment Retroactive, But Who Will Benefit?

I testified earlier today before the U.S. Sentencing Commission on retroactivity for the new crack amendment.  Here are a few off-the-cuff impressions.

This was my first time appearing before the Commission, and I was quite impressed by how engaged and well-prepared the Commissioners were.  Through a long morning of testimony by a dozen witnesses, the Commissioners asked many questions, and not one of the questions seemed ill-conceived or poorly articulated.  They had obviously read with real care the written submissions by the witnesses, and they went right at the key problems with each witness’s position.  Testifying was like oral argument before an exceptionally good appellate panel.

The Commissioners seemed pretty clearly inclined to make Parts A and C of the amendment package retroactive.  (Part A reduces sentences for crack offenders based on drug quantity; it’s another two points from the offense level for many current prisoners, as also happened with the  2007 amendment.  Part C ends the treatment of simple possession of crack as a trafficking offense.)  On several occasions, one commissioner or another referred to a “consensus” in favor of retroactivity for A and C.  That view, in some form or another, was favored even by most of the witnesses who were there to represent law-enforcement perspectives.

But it’s not clear how far the retroactivity decision will reach.  Attorney General Holder led off the hearing with something of a surprise from the Department of Justice.  The Department is taking a position in favor of retroactivity, but with two major exclusions: offenders in criminal history categories IV-VI or with a weapons enhancer (guidelines or 924(c)).  This would exclude about half of the offenders who are otherwise eligible for a sentence reduction.

Although the Department obviously carries a lot of weight with the Commission, I don’t think the Commission is going to go for the exclusions.  I was surprised by how uniformly and sharply critical the Commissioners were in their questioning regarding the exclusions.  (There was a nice lesson in the politics of these things.  The AG led off with a prepared statement announcing the Department’s position, then excused himself, leaving an unlucky AUSA behind to field the Commission’s tough questions.)  One major objection is that the excluded offenders already had their criminal history and weapons involvement taken into account in setting their original sentences, and those enhancements will remain in place even if their sentences are now modified.  But if they are denied the opportunity to benefit from the new drug quantity table, their criminal history or weapons involvement will effectively be double-counted against them.

I spoke extemporaneously against the Department’s proposed exclusions in my testimony.  The main reason offered by the Department in favor of the exclusions is that prosecutors do not have the time to assess and litigate dangerousness on a case-by-case basis; therefore, public safety can only be protected if crude proxies for dangerousness are used.  I pointed out, though, that most eligible inmates will not have a release date until at least year three after the amendment, so there’s no real hurry in most cases.  Prosecutors should have plenty of time to triage and then take a closer look at the cases with high criminal history or other indicators of dangerousness.  If judges are pressing too hard, I suggested the Commission could, in consultation with the Department, issue recommendations for court scheduling and case prioritization so as to permit adequate case-by-case assessment.  If this is unsatisfactory, I suggested that the Commission might consider a tiered approach to setting the effective date for retroactivity; for instance, the effective date might be set an extra six months out for offenders in criminal history categories V and VI, giving an opportunity for the system first to clear out a lot of the easy cases.

I also pointed out that brand-new recidivism data (released by the Commission just yesterday afternoon) shows that offenders in CH category IV who were released under the 2007 amendment actually have a lower recidivism rate than offenders in CH category III.  It’s a bit odd, then, to invoke public safety as a reason for making IV the cutoff.

Finally, I argued that vicarious liability makes mere weapons possession an exceptionally poor proxy for dangerousness — you can get a weapons enhancement based merely on the reasonable foreseeability that one of your criminal confederates might possess a gun.  If weapons involvement is used as a basis for exclusion, I suggested that the exclusion focus on brandishing or more aggravated use under 924(c) rather than mere possession.

Even if the Department’s exclusions are rejected, some of the Commissioners seemed surprisingly interested in making the new aggravating specific offense characteristics of Part B retroactive.  This would have the effect of precluding or limiting sentence reductions for crack offenders who are subject to one of the new aggravators, e.g., use of violence, bribery of a law-enforcement officer, use of a minor.  This could make the sentence-modification proceedings considerably more cumbersome, as new fact-finding would be required.  (Parts A and C could be implemented retroactively based on existing paper records from the initial sentencing.)

I opposed retroactivity for the new SOCs in my written testimony and reiterated the main points in my oral testimony today.  Even if not made formally retroactive, they can still be considered by district judges as a basis for denying or reducing the size of a sentence modification.  The real question for retroactivity is whether district judges will be required to attach a particular weight to the new SOCs, or whether they can be assessed in a more flexible, discretionary way.  Consistent with the general premises of post-Booker federal sentencing, I favor the more discretionary approach.  I think this is especially important in light of the fact that some of the “new” aggravators may have already been used to set a high sentence within a guidelines range; retroactivity thus creates a potential double-counting problem.