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.

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Still Not Quite as Fair as It Could Be

I posted earlier this spring on the Seventh Circuit’s decision in United States v. Fisher (No. 10-2352), which held that the Fair Sentencing Act’s higher quantity thresholds for mandatory minimums does not apply to defendants whose conduct occurred before August 3, 2010, but who were sentenced after that date.  Recognizing that the holding created arbitrary distinctions, the court renamed the FSA the “Not Quite as Fair as It Could Be Sentencing Act.”  In any event, the retroactivity question in Fisher is an important one that has divided district judges.  Because Fisher marked the first pronouncement by any circuit court on the question, the case has deservedly attracted much attention.

Now I see that the Seventh Circuit denied rehearing and rehearing en banc earlier this week.  Judges Williams and Hamilton dissented.  Their opinion presents a good case for giving the FSA’s benefits to all defendants sentenced after August 3.  I hope that other circuits will pay close attention to their reasoning as they take up this important question.

Reforming Federal Drug Sentencing: From the Cutting Room Floor

In a recent post, I put up a preliminary draft of my testimony to the Sentencing Commission next week on retroactivity for the pending crack amendment.  At the end of the statement, I included a general suggestion for reform of the drug sentencing guidelines.  In my first draft, I had an additional suggestion, but then decided that it would be better for the testimony to be more focused.  I thought it might nonetheless be of interest to others, so I set it forth below.

By way of background, the drug guidelines are set up so that the guidelines range for any given quantity of drugs will be above the applicable statutory minimum.  The minimums thus become anchoring points, and quantities above the minimum-triggering amounts get proportionately higher sentences.  In effect, what the Commission has done is to incorporate and exacerbate the excessive harshness of the minimums in the guidelines.  No statute requires the Commission to do this.

Here’s my advice to the Commission:

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Seventh Circuit Vacates Sentence Based on Parsimony Clause

According to the so-called parsimony clause of 18 U.S.C. § 3553(a), federal sentences must be “sufficient, but not greater than necessary, to comply with” the sentencing purposes set forth in § 3553(a)(2).  In general, appellate courts have been less than vigorous in enforcing this mandate.  No doubt, this has much to do with the open-ended nature of the (a)(2) purposes (deterrence, incapacitation, retribution, and the like) — it’s hard to say precisely in any given case what is sufficient or necessary to advance these purposes.  You can sympathize with appellate judges who want to avoid what seems an intellectual quagmire.

But even if the parsimony clause cannot be (or won’t be) effectively enforced as a substantive matter, appellate courts may nonetheless do some good by ensuring that sentencing judges pay attention to the clause as a procedural matter.

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The Not Quite as Fair as It Could Be Sentencing Act of 2010

On Friday, the Seventh Circuit clarified how the Fair Sentencing Act of 2010 is to be applied to cases that were pending on the statute’s effective date — it isn’t.  The FSA increased the threshold quantities necessary to trigger the five- and ten-year mandatory minimums for crack cocaine offenses.  The statute thus partially closes the notorious crack-powder sentencing disparity, with an effective date of August 3, 2010.  Shortly thereafter, in United States v. Bell, 624 F.3d 803 (7th Cir. 2010), the Seventh Circuit held that the FSA does not apply retroactively to cases in which an appeal was pending on August 3.

The new wrinkle in United States v. Fisher (No. 10-2352) was presented by a defendant who pled guilty before August 3, but who was sentenced after August 3.

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