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.

A close brush with Anders

This week I had a close brush with the Anders standard.  An Anders brief is a "no-merit" brief in which the appellate lawyer informs the court of appeals that he cannot find any meritorious issue in the case to support an appeal.

My friend Jamie Spencer recently wrote an interesting post about a case in which a Texas lawyer wrote a very sloppy Anders brief.  In  preparation for the posting, Jamie actually went and read the Anders case (RTFM?), which has a happy ending–Appellant Anders actually had meritorious issues in his case that his original counsel had missed, and his case was reversed and remanded.  A rare win on appeal for the defense.

No Appellate lawyer or Appellate court wants to deal with an Anders brief.  This is because a correctly-drafted Anders brief requires the Appellate lawyer to brief any conceivable error and explain why that error has no merit.  As an illustration of the tedium of an Anders brief, See the 5th Circuit's 7-page single-spaced outline of the minimum things a proper Anders brief must contain.  (RTFM)
So I was working away on a brief to the US 5th Circuit Court of appeals in an appointed appeal of a guilty plea.  I had not handled the case at the trial court level, but I had noticed that the Appellant had filed his own notice of appeal from jail.  An appellant's filing his own NOA is rather unusual because most of the time the attorney will prepare and file the notice of appeal, especially since Appellant had hired the out-of-town lawyer to handle his case.  Unfortunately the NOA was not filed on time but it was mailed on time from jail which is close enough (see this article concerning the "mailbox rule").  

I had visited with the trial counsel and he had told me of the one possibly meritorious sentencing issue which I had duly briefed and was writing about.  I didn't recall any mention from him of any particular problems with filing an appeal.  Then I noticed the big problem–Appellant had plead guilty with a plea agreement in which he waived his right to appeal.  Whenever I had dealt with this situation in the past, the Government had always chosen to enforce the appeal waiver. And I had never had any strong argument about why they shouldn't.  But in this case I really felt like my client had gotten the short end of the stick.  

What to do?  There is no manual for this situation.  So I did some instant research–I called my friend Stan Schweiger who is an excellent appellate lawyer.  Stan suggested that I call up the head of the US Attorney's office appellate section.  Stan assured me that he was a reasonable guy who might just choose not to enforce the appeal waiver.

Anders averted: I spoke with AUSA Joseph Gay, head of the appellate section, and he turned out to be an eminently reasonable guy.  He said that the Government would actually read my brief and take a look at the merits of my case before deciding whether to exercise the appeal waiver provision of the plea agreement. 

I must say that I was somewhat surprised and very impressed.  In the past I have never had a prosecutor tell me that they might just overlook the appeal waiver if they agree that the client got a raw deal.  It is too easy for a prosecutor to lose track of the fact that their goal is not to rack up wins but to see that justice is done.  Which is exactly what not enforcing the appeal waiver in this situation would do.

Will I win this appeal?  I don't know, but at least I have a shot at making an argument for my client.  And as an added bonus, I didn't have to write the dreaded and detestable Anders brief.

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.

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.