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.