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.
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.