Calls for retroactive crack sentencing relief

I have long felt that to a great extent we in this country have wasted the potential of a generation of motivated, entrepreneurial black males through the overcriminalization of crack cocaine.  I represented young black men in the mid '90's who could have sold ice to eskimos (can I say that?), but who were caught up in the federal crack cocaine dragnet and were sent to federal prison for over a decade as a result.  Instead of redirecting these young men with great potential and enabling them to give back to our country, we sent them to waste their youthful energy and creativity on a taxpayer sponsored $35,000.00 per year vacation.

Now that there is a possibility of some of these young men being resentenced, I would love to say that I see a wave of popular support for retroactive application of the new "crack" cocaine sentencing guidelines.  I am not sure I see that wave yet, but I am hearing a growing chorus of cries for relief.  Here is a sampling of articles calling for retroactive reform.  Feel free to add more links in comments.

Time magazine asks Will Crack-Cocaine Sentencing Reform Help Current Cons? by Theo Emery, August 7th, 2009.

From the Huffington Post article by Julie Stewart, president of Families against Mandatory Minimums, August 3rd, 2010:

When a manufacturer issues a defective product, they don't just fix the problem going forward; they do a total recall. Recalling the defective 100-to-1 disparity for everyone will bring relief to thousands of families and increase respect for the justice system. 

The Sentencing Project wrote a letter to the United States Sentencing Commission urging that they use their power to make the amendments retroactive:

Despite sensationalized warnings of administrative burden and increases in crime, these concerns have not been borne out. This success should encourage the Commission to continue on its path towards increased sentencing fairness by applying the Fair Sentencing Act to persons sentenced before its enactment.

Austin Chronicle write Jordan Smith urged the USSC to make the amendments retroactive on August 20th, 2010:

 The next step? Get Congress to make the new crack sentencing law retroactive, as the USSC did with the guidelines.

Blogger and Attorney Chad VanCleave in Cameron, Texas  and Dallas lawyer and blogger Cint Broden discuss possible remedies for any retroactive crack cocaine sentences on August 25th, 2010.

From Jeralyn Merritt at Talk Left: Crack Retroactivity: Don't Look to Obama for Help, discussion of the unlikeliness of blanket presidential clemency action to reduce pre-reform crack sentences from President Obama on September 12th, 2010.
From The Crime Report writer Justin Smith, September 22nd, 2010:

While the new act has returned some element of fairness to an issue  that had been clouded by the rush to punishment fueled by the “law and order”  anxieties of the 1980s, the injustice arguably continues.

From the National Law Journal opinion piece by Harlan Protass and Mark D. Harris, September 28th, 2010:

…permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less.

Crack Sentencing Reductions–another piece of the puzzle

Earlier this month I wrote about the United States Sentencing Commission taking "emergency" action to translate the new "Fair Sentencing Act" into workable sentencing rules for folks charged with federal crack cocaine offenses.  So now we have the United States' Legislative and Judicial branches working toward decreasing the grossly excessive sentences that have been imposed for federal crack cocaine cases.

Last I checked, though, we have three branches to our federal government.  And last I checked with a federal prosecutor they had received no guidance on how to deal with crack cocaine cases.  Which means that without the bosses at DOJ telling them to advocate in favor of the new legislation or proposed USSG amendments they'll largely carry on as before until the new Guidelines are finally adopted.  

Doug Berman's excellent blog Sentencing Law and Policy is a fantastic source for news and analysis of developments in many areas of sentencing law.   Doug found some promising comments made by AG Eric Holder on September 21st, which seem to suggest that the Executive branch may take action sooner rather than later:

Over the past year, we have also been reevaluating federal sentencing and corrections policies to ensure that the proper balance is struck in promoting public safety, punishing criminals, avoiding unwarranted sentencing disparities, and reducing recidivism.  Recommendations are currently in development and will be released later this year, but we were – and we all should be – heartened by the recent passage of the Fair Sentencing Act.  The crack/powder sentencing disparity was a symbol of unfairness in our system and, though there’s more work to be done, its reduction is an encouraging step forward.

My concern is that these "recommendations" the AG refers to may not be any executive-branch-DOJ guidance, but that he might simply be referring to the prospective emergency amendments to the USSG's.  I wish that Eric Holder would take a firm stand and urge that his prosecutors actively advocate for sentencing judges to use the new/proposed crack cocaine guidelines, rather than waiting until their final adoption.  

If Holder is sincere about the crack/powder disparity being a "symbol of unfairness in our system," then allowing his prosecutors to stand silent on this matter is a tacit adoption of that unfairness.  Rather than relying on individual defense attorneys advocating with individual prosecutors on individual cases before individual judges, AG Holder needs to instruct all federal prosecutors to advocate in favor of the proposed guidelines in all courts for all cases.

Sting or Entrapment?

Here's a new ploy from law enforcement–do you  think this passes the smell test?

  • Use confidential informants to "recruit" prospective robbers of drug dealers
  • This keeps the undercover informants' handlers hands clean
  • Once "recruited" by the CI, the undercover agent spins a yarn about being a disgruntled employee of the drug cartels
  • Yarn: I know a dope dealer we can rob, he's got kilos and kilos of cocaine–all we have to do is take it.
  • Agent's proposal:  I give you the lead, you bring the manpower and the hardware, and we will split the proceeds
  • Recruitee shows up  with some personnel to "rob" the "dope dealer"
  • Gotcha!  Police have busted a bunch of "robbers" who can now be charged with conspiring to possess kilos and kilos of cocaine.
  • Here's the catch–there was no cocaine, no dope dealer, no nothing.  Only a plan to do something impossible to someone nonexistent in order to possess something unpossessable.

In a recent story in the Austin American Statesman, local reporter Steven Kreytak spoke to several attorneys and the prosecutor of two separate but similar federal "stings" of this type in Austin which resulted in the arrest and indictment of at least 13 individuals in August.  From Steven's story:





"It just smells funny," said defense lawyer Russ Hunt Jr., who is representing [a defendant] charged in the more recent case. "There is no dope dealer. There is no dope.

"It seems kind of unfair, but the fact is that everybody showed up to do some kind of crime," Hunt said.

Prosecutor Mark Lane declined to comment, and Michael Reyes, resident agent in charge of the Austin ATF field office, would only say, "In general terms, we are always looking for ways to approach gun-related crime."

Defense lawyer Stephen Toland, who is representing [a second defendant] said Jaimes thought he would be repossessing cars for a used-car lot.

Toland said [his client] was recruited by a confidential informant who was not mentioned in the affidavit. Toland said the informant was intricately involved in setting up the case and at one point gave [his client] and the others ID cards that showed they were his employees.

Toland also said Facebook updates posted by the informant, whom he did not identify, appear to show that he profited from his cooperation. One update near the time of the arrests said, "Crime is up. Crime pays," Toland said.

Assistant Federal Public Defender Jose Gonzalez-Falla, who is representing defendants in both cases, . . .  said that the work of the informant will be scrutinized to determine whether he committed entrapment.

"If we can show that the confidential informant entrapped my client," Gonzalez-Falla said, "that's as good as if the government agent did it."

Here's the real difficulty for the defense attorneys trying to argue entrapment: entrapment requires government inducement on the one hand, and a lack of predisposition to commit the offense but for the inducement on the other.  This means that a person with some history of drug possession or robbery will have a much harder time arguing that the government overreached than someone with no criminal history.

Look for more commentary as the case develops.  In the meantime let me know what you think.









New Federal Crack Cocaine Sentencing Rules Coming Sooner Than Expected?

Good News on the Federal Crack Cocaine Sentencing Disparity Front–relief from Draconian Sentencing Guidelines may come earlier than expected!  Congress enacted The Fair Setencing Act of 2010 last month, which substantially lessened the 100:1 crack/powder cocaine disparity, at least in terms of mandatory minimum sentences.  The problem for actual criminal defendants charged with Federal crack cocaine offenses is that the Sentencing Guidelines still operate under the old law which mandated the 100:1 sentencing disparity.  

Word in legal circles was that the Sentencing Commission would issue proposed rules changes on November 1, followed by a lengthy comment period which would eventually lead to a change in actual sentences imposed for crack defendants.  So much for "Fair Sentencing."

Yesterday I discussed with a Federal probation officer and assistant United States attorney whether my client might get any benefit from the United States Sentencing Commission's prospective rule changes at his sentencing in mid-November, and both indicated to me that they would argue that until the guidelines were formally changed, the judge should follow the old law (with the 100:1 disparity in place).  My position was that the judge should certainly enforce Congress's directive, not the Sentencing Commision's merely advisory sentencing guidelines.

Apparently as we were speaking the USSC decided that following legislative directives shouldn't require waiting through a long drafting and comment period.  It turns out that The Fair Sentencing Act of 2010 specfically authorizes the USSC to take emergency action to quickly amend the guidelines to mitigate the 100:1 crack/powder cocaine disparity.  Links to proposed rules follow.

Real Sentencing Relief may actually be on the way.

Link to Federal Register–Notice of proposed amendment from US Sentencing Commission

Proposed Amendment and Issues for Comment: Fair Sentencing Act of 2010: The Commission is seeking comment on its emergency, temporary proposed amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111–220). The Act was signed into law on August 3, 2010, and requires the Commission to promulgate its emergency, temporary amendment (pursuant to section 21(a) of the Sentencing Reform Act of 1987 (28 U.S.C. § 994 note)) within 90 days, i.e., not later than November 1, 2010. Public comment is due [30 days after publication in the Federal Register].


"Reader-Friendly" Version of Proposed Emergency Temporary Amendment and Issues for Comment: Fair Sentencing Act of 2010: This compilation contains unofficial text of the proposed emergency temporary amendment and issues for comment implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010 (Pub. L. No. 111-220). Official text will appear in an upcoming edition of the Federal Register.

Notice of Final Priorities: In July 2010, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2011. (See 75 Fed. Reg. 41927) After reviewing the public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these priorities.