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Feature: Poll Finds Broad Support for Doing Away with Mandatory Minimum Sentencing for Nonviolent Offenders

A poll released Wednesday by Families Against Mandatory Minimums (FAMM) found broad support for eliminating mandatory minimum sentencing for nonviolent offenders and a majority who said they would vote for politicians who acted to end them. The poll results challenge the longstanding conventional wisdom that politicians need to be "tough on crime" to win elections.

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federal courthouse, Alexandria, Virginia
According to the poll conducted by StrategyOne, an independent public opinion research firm, 78% thought the courts -- not Congress -- should determine how long people convicted of offenses should be imprisoned. Solid majorities also supported ending mandatory minimum sentences for nonviolent offenders (59%) and voting for congressional candidates who would act to end mandatory minimum sentencing (57%).

"Politicians have voted for mandatory minimum sentences so they could appear 'tough on crime' to their constituents. They insist that their voters support these laws, but it's just not true," says Julie Stewart, president and founder of FAMM. "Republicans and Democrats support change and that should encourage members of Congress to reach across the aisle next year and work together to reform mandatory minimums. Mandatory sentencing reform is not a partisan issue, but an issue about fairness and justice that transcends party lines."

"This poll suggests that a majority of Americans are open to re-examining this issue and moving to a court-driven sentencing model," said Sparky Zivin, research director at StrategyOne.

"I am amazed that such a high number of people even understood the difference between Congress doing sentencing and the courts doing it," said Nora Callahan, executive director of the November Coalition, an anti-prohibitionist group that focuses on freeing federal drug war prisoners. "I didn't think that many people would agree, but it seems that the public has grasped that crime has been politicized. That leads me to believe we will probably see a much greater understanding of what's wrong with our punitive drug laws and what's wrong with prohibition."

The poll results show that while politicians largely remain wedded to the "tough on crime" philosophy and the notion that it helps them win elections, the public is going in a different direction, said Callahan. "It's very dramatic; it's astonishing," she said. "This is very far from what the politicians are thinking; we are seeing that there is a huge gap there."

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overcrowded prisons
But even on Capitol Hill, there are a few voices calling for radical sentencing reform. Sen. Jim Webb (D-VA) has, since his election in 2006, been leading the charge. Webb has already held two hearings on sentencing and drug policy issues and will hold a third next month.

"America is locking up people at astonishing rates. In the name of 'getting tough on crime,' there are now 2.2 million Americans in federal, state, and local prisons and jails and over 7 million under some form of correction supervision, including probation and parole. We have the largest prison population in the world," said Webb in a statement included in FAMM's press release announcing the poll results. "This growth is not a response to increasing crime rates, but a reliance on prisons and long mandatory sentences as the common response to crime. It is time for America's leadership to realize what the public understands -- our approach is costly, unfair and impractical."

Webb is not alone. Even on the Republican side of the aisle, there are signs of support for sentencing reform. Rep. Bob Inglis (R-SC) is one GOPer who is ready for change.

"Mandatory minimums wreak havoc on a logical system of sentencing guidelines," said Inglis. "Mandatory minimums turn today's hot political rhetoric into the nightmares of many tomorrows for judges and families."

In addition to releasing the poll results Wednesday, FAMM also released a comprehensive new report, Correcting Course: Lessons From the 1970 Repeal of Mandatory Minimums, which details how Congress created mandatory minimum prison sentences for drug offenders in 1951 and repealed them in 1970 because the laws failed to stop drug abuse, addiction and trafficking. The politicians involved in overturning mandatory minimums in 1970 had no problem getting reelected, the report notes.

The report also looked at the rebirth of mandatory minimum sentencing in the fear-ridden 1980s and charts the ways they have been ineffective and counterproductive. According to the report, mandatory minimums:

  • Have not discouraged drug use in the United States.
  • Have not reduced drug trafficking.
  • Have created soaring state and federal corrections costs.
  • Impose substantial indirect costs on families by imprisoning spouses, parents, and breadwinners for lengthy periods.
  • Are not applied evenly, disproportionately impacting minorities and resulting in vastly different sentences for equally blameworthy offenders.
  • Undermine federalism by turning state-level offenses into federal crimes.
  • Undermine separation of powers by usurping judicial discretion.

"Our report and poll show that lawmakers can vote to reform mandatory minimums for nonviolent offenses and live to tell the story. Republicans and Democrats alike don't want these laws. They don't work, they cost taxpayers a fortune, and people believe Courts can sentence better than Congress can. Another repeal of mandatory drug sentences isn't just doable, it's doable right now," said Molly Gill, author of the report.

Criminal Justice Policy Foundation head Eric Sterling was counsel to the House Judiciary Committee in the mid-1980s, when some of the most draconian mandatory minimum drug laws were passed. He has been working to undo them ever since.

"In 1986, we got stuck with some of the most punitive, least effective criminal sentencing laws ever created, said Sterling. "Mandatory minimums haven't stopped the drug trade. They haven't locked up the big dealers and importers. They're applied to small fries, not kingpins. It's a waste of taxpayer dollars to lock up a street-level dealer for 10 years when that money could be spent on treatment, drug courts, or going after the people bringing in boatloads of drugs every year. Getting rid of mandatory minimums is about getting our priorities straight."

"Mandatory minimums are among the worst criminal justice policies ever adopted in this country," said FAMM's Stewart. "They treat all offenders the same, when the most sacred principle of American sentencing law is that punishment should fit the individual and the crime. Repealing these laws isn't impossible -- it's been done before. The next Congress should do it again," she said.

FAMM's report offers two options for dealing with mandatory minimums: Repealing them outright while leaving federal sentencing guidelines in place, which would allow for judicial discretion, or expanding the "safety valve," under which judges can ignore mandatory minimums in some circumstances.

With the US economy and federal budget under unprecedented pressure, and with elections looming that could dramatically alter the political landscape, the time for radical sentencing reform may be drawing nigh, but reformers aren't counting their chickens just yet.

"There could be a window opening," said the November Coalition's Callahan. "I won't start holding my breath until we see how the elections play out, but we're working hard and preparing to work even harder the next four years."

While a poll isn't going to change the mind of Congress, she said, it creates an opening, both with politicians and the public at large. "With these numbers, I can think of a lot of new ways to talk to people," she said. "Activists tend to think that people don't get it, but this poll shows that people do get it, and now people are even more cynical about their leaders. This helps create a definite climate for achieving reform."

Feature: US Sentencing Commission to Examine Alternatives to Incarceration

The US Sentencing Commission, the panel that sets sentencing guidelines for federal courts, has signaled that it intends to focus next year on developing alternatives to imprisonment, a move that is welcomed by reform advocates, but opposed by conservatives and, likely, the Justice Department. The commission's intentions were mentioned in a recent filing in the Federal Register and come as a September 8 deadline for public comment has just passed.

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Created in 1984, the Sentencing Commission consists of seven presidential appointees who are then confirmed by the Senate Judiciary Committee. The panel is charged with making sentencing recommendations which automatically take effect unless Congress proactively votes to reject them.

While Congress has repeatedly enacted tough new sentences in bouts of anti-crime or anti-drug hysteria, the Sentencing Commission is less prone to political passions and more likely to act as a restraining influence on congressional incarceration mania. The commission, for example, has for more than a decade urged reforms of the crack/powder cocaine sentencing disparities that have seen thousands of African-Americans imprisoned for years for crack while mostly whites holding similar amounts of powder cocaine do far less time. Last year, the commission enacted changes in the federal sentencing guidelines to reduce sentences for crack offenders.

Despite objections from the Justice Department, the commission then went a step further, making the reductions retroactive so that some of the thousands of long-serving crack offenders could get out of prison a few months early.

But with some 2.3 million people behind bars in the US, including more than 200,000 in the federal system -- more than half of them drug offenders -- the commission signaled earlier this year that it wants to see more efforts to reduce those numbers. This summer, it hosted a two-day symposium on alternatives to incarceration, and now, with the Federal Register announcement, it appears the commission will continue down that path.

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"The summer symposium was a really good coming together of criminal justice experts," said Kara Gotsch, director of advocacy for the Sentencing Project, a Washington, DC-based think tank. "There were judges, probation and parole people, law enforcement, academics, and advocates there to talk about what the states are doing in relation to alternatives to incarceration. They discussed successful programs that are diverting people from prison. The commission has demonstrated its interest in this issue and has said it would distribute materials from the symposium, so we are hoping the commission will look to apply some of this to alternatives to incarceration at the federal level, including expanding the sentencing grid to include alternatives."

Not everyone was so excited. In a weekend story in the Wall Street Journal, the Justice Department seemed decidedly unimpressed. Spokeswoman Laura Sweeney said that while the department is interested about the use of expanded monitoring technologies, "we do not believe the use of alternatives should be expanded without further rigorous research showing their effectiveness in promoting public safety."

Similarly, Michael Rushford of the conservative, victims' rights-oriented Criminal Justice Legal Foundation warned that resorting to less mass incarceration could result in rising crime and violence. "I'm old enough to remember the 1960s and the sky-high crime and murder rates we had then," he said. "While there may be a role for diversion for young offenders, serious felony offenders need to be behind bars."

While it is unclear exactly what the commission might recommend, the summer symposium heard lots of talk about drug courts, residential and community corrections, and other alternatives to incarceration. It does seem clear that the commission wants to reduce the flow of new inmates before they get to the prison gates.

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"We're going to be looking at what might fit at the starting point, before somebody is sent to prison," District Court Judge Ricardo Hinojosa, chairman of the commission, told the Wall Street Journal. But the commission will move cautiously, he said.

"The commission's priorities for next year are not yet finalized," said Gotsch, who is hoping it will also consider further reforms of crack sentencing and the mandatory minimum sentencing structure. "But we are encouraged by the symposium and this announcement. Advocates like us and Families Against Mandatory Minimums (FAMM) will continue to push for modifications of the sentencing grid to make including alternatives to incarceration a priority. The issue is clearly on their radar, and that's a good thing," she said.

The Sentencing Commission can -- and should -- have an impact on Congress, Gotsch said. "If we can get them on board for alternatives to incarceration, that will be huge. When the commission speaks on a sentencing issue, Congress should listen."

Europe: Despite British Marijuana Reclassification, No Jail for Low-Level Sellers

Last week, the British government announced it was returning marijuana to Class B drug status, signaling an end to the four-year experiment that saw the herb downgraded to a less serious Class C drug. That meant marijuana sellers could theoretically face up to 14 years in prison. Under guidelines issued Monday by the Sentencing Guidelines Council, however, it appears that many pot sellers will face no more than low-level sanctions.

For the first time in four years, the Sentencing Guidelines Council has promulgated a range of sentencing options for every offense that can be dealt with at a magistrate's court. Under the new guidelines, marijuana users who grow their own stash and occasionally provide marijuana to friends could be punished with only a fine or probation. Even those who supply larger amounts of marijuana or other drugs to share with a small circle of friends could receive probation, according to the guidelines.

For small-scale growing or sales of marijuana, the top end punishment in magistrate's court under the guidelines is 12 weeks in custody, but that sentence would be imposed only if there were aggravating factors. Commercial cultivation or large-scale sales offenses would be handled in the more serious Crown Court, where stiffer penalties are applied.

Opposition Conservatives were quick to pounce on the apparent contradiction between the government's announced hard line and the sentencing council's guidelines. "Once again we see mixed messages going out about drugs," said Tory justice affairs spokesman Nick Herbert in a Monday statement. "Just as the government finally admits that they got it wrong when they lowered the classification of cannabis, these guidelines would see most dealers receive weak and often poorly enforced community sentences."

But despite the posturing of the Tories, the sentencing council's guidelines seem in line with the recommendations of the government's Advisory Council on the Misuse of Drugs, which opposed the reclassification.

Crack Sentencing Gets a Hearing on Capitol Hill While Advocates Mobilize

With the early release of some crack cocaine prisoners set to get underway next week and pressure mounting to do something about the disparity between sentences for crack and powder cocaine offenses, the House of Representatives this week turned its attention to the issue. A Tuesday hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security saw spirited discussion of both retroactive sentence reductions for current crack prisoners and a number of bills that seek to address the disparities between crack and powder sentences.

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Alva Mae Groves died in prison at age 86 while serving a 24-year crack cocaine sentence after refusing to testify against her children. (photo courtesy november.org)
Also Tuesday, as House members debated the merits of the various proposals, drug reform, civil rights, and civil liberties groups led a day of lobbying on the Hill. Key for the activists was maintaining retroactivity so that sentence reductions for crack offenders will apply to those currently imprisoned and persuading Congress members to come together behind a sentencing reform bill that will reduce disparities.

The day of lobbying was kicked off with a morning press conference featuring Reps. Bobby Scott (D-VA), Bobby Rush (D-IL), Sheila Jackson-Lee (D-TX), and Chris Shays (R-CT), as well as former crack prisoners Dorothy Gaines and Michael Short, who was granted clemency in December by President Bush after serving more than 15 years. After that, it was on to the Hill.

"We were in meetings all day," said Bill Piper, national affairs director for the Drug Policy Alliance, which joined forces with state delegations and national organizations including the ACLU, the Sentencing Project, and Families Against Mandatory Minimums in the day of action on the Hill. "There were a lot of good interactions, and there is a lot of optimism about the prospects for change on the Hill. There is a strong sense that legislation could move in the next week or two," he said.

The question is which legislation? At least four bills -- H.R. 79, H.R. 360, H.R. 4545, and H.R. 5035 -- that would address the crack-powder cocaine sentencing disparity have been introduced in the House, and there are more in the Senate. They mandate changes ranging from completely equalizing crack and powder sentencing to reducing the discrepancy to a ratio of 20:1.

Under current sentencing laws, written during the crack hysteria of the mid-1980s, it takes 500 grams of powder cocaine to earn a five-year mandatory minimum prison sentence, but only 5 grams of crack. That 100:1 disparity has resulted in the imprisonment of thousands of people, mostly black (even though most crack users are white), for lengthy periods of time.

"It appears that most members of Congress, as well as the public, agree that the current disparity in crack and powder cocaine penalties is not justified and that it should be fixed," said subcommittee chair Rep. Scott as he kicked off Tuesday's hearing. "However, there is not yet a clear consensus on what that fix should be."

The basis for the sentencing disparity between crack and powder was based not on science or evidence, "but political bidding based on who could be the toughest on the crack epidemic that was believed to be sweeping America several years ago," Scott said. "There is certainly no sound basis for a five-year mandatory minimum sentence for the mere possession of five grams of crack, when you could get probation for possessing a ton of powder, because mandatory minimum sentences for powder only apply to distribution, not possession cases."

Scott then offered his bill, H.R. 5035, as the best fix. "It is a simple bill that goes the furthest in addressing the problems in the current cocaine sentencing laws," Scott said. "First, it eliminates the legal distinction between crack and powder cocaine, treating them as the same drug, which they are. The bill also eliminates all mandatory minimum sentences for cocaine offenses. And lastly, it authorizes funding for state and federal drug courts, which have both proven to be effective in preventing recidivism and saving money, when compared to longer periods of incarceration."

Rep. Charles Rangel (D-NY), one of the architects of tough crack sentencing laws in the 1980s, was singing a different tune Tuesday -- as he has for some years now. "There's no question in my mind that those people who thought that people involved with possession of crack should be sentenced at higher thought that it would in some way serve the community better," he said. "Clearly, that is not the case, and we find that to take the discretion in determining who goes to jail and who doesn't go to jail is showing lack of confidence in our judges."

Rep. Jackson-Lee, whose own bill, H.R. 4545, also addresses the crack-powder sentencing disparity, said it was time to "finally eliminate the unjust and unequal" disparities and "right the wrongs" created by the harsh anti-drug laws of the 1980s. "For the last 21 years," said Jackson-Lee, "we have allowed people who have committed similar crimes to serve drastically different sentences for what we now know are discredited and unsubstantiated differences."

It wasn't entirely an anti-disparity, pro-reform love fest in the committee, though. Ranking minority member Rep. Louie Gohmert (R-TX) said that while he supported efforts to redress the crack-powder sentencing disparity, he was worried that the Sentencing Commission's decision to make changes in the sentencing guidelines retroactive would lead to the release of violent criminals. "As a former judge and chief justice, I am vigilantly reluctant to legislatively overturn the past judgment of judges or juries, who were in the best position to consider the offense and the offender," he said.

He was echoed by a Justice Department representative. "Any reforms should come from the Congress, not the US Sentencing Commission; and second, any reforms, except in very limited circumstances, should apply only prospectively, not retroactively," testified Gretchen Schappert, US Attorney for the Western District of North Carolina, laying out the Justice Department position. "We continue to believe that a variety of factors fully justify higher penalties for crack offenses. It has been said, and certainly it has been my experience, that whereas powder cocaine destroys an individual, crack cocaine destroys a community." DOJ chief Michael Mukasey has been trying to stymie retroactive releases as well, and the DOJ home page currently devotes its top link to a speech he gave to the Fraternal Order of Police on the topic.

But the committee also heard from Michael Short, a Baltimore man who served nearly 16 years in prison for selling two ounces of crack before President Bush granted him clemency last year. "I know what I did was wrong," Short told the committee. "I sold illegal drugs, and I deserved to be punished. But what I did and who I was did not justify the sentence I received. And while today I am telling my story, it is also the story of many men that I know in prison, nonviolent offenders serving 10, 20 or 30 years for crack cocaine offenses. I did not need 20 years to convince me of the error in my ways, to punish me or to set me on a right path. My sentence was altogether too long. It was too long because of the way the law treats crack cocaine. Twenty years is the kind of sentence that drug kingpins should get -- big-time drug dealers. But I was not a drug kingpin. I was sentenced like one, because the drug I was convicted for was crack cocaine."

Short also took issue with the characterization by the Justice Department and some committee members of crack offenders as dangerous criminals. "I have heard some of the comments some people in positions of power have made about crack cocaine prisoners -- that we are violent gang members and that this is why our sentences have to be so much longer. I am not that person, and most of the people that I leave behind in prison aren't either," he said. "Although I made a terrible mistake, there was no violence in my crime. I was not a gang member. I was sentenced for such a long time because of a stereotype."

Now, with hearings having been held in both chambers of the Congress -- the Senate held one two weeks ago -- it is time to get those bills moving. And that is what is happening behind the scenes on the Hill, said Piper.

"Senators Sessions, Biden, and Hatch are sitting down and trying to work out a compromise," he said. "They're trying to come up with something they can all agree on that will also pass on the floor. My sense is that it will not be the complete elimination of the sentencing disparity, but somewhere in between Hatch's 20:1 ratio and Biden's 1:1. It will likely end up being 5:1 or 10:1," Piper predicted.

Reducing the crack-powder sentencing disparity would be a "wonderful development," said Robert Weiner, former public affairs director for drug czar Gen. Barry McCaffrey. "These sentences are just crazy, they're part of the gross distortion of the criminal justice system. If you're going to do the crime, you should do the time, but it should be the same time for the same crime," he said.

But the Justice Department's strident effort to roll back retroactivity could throw a wrench in the works, Piper warned. "That is a complicating factor," he conceded. "We hope to keep that out of any compromise bill. Thousands of families are waiting for their loved ones to come home soon, and we don't want to disappoint them."

Now, after years of inaction, Congress may finally act. But it's not a done deal yet, and there is many an obstacle between here and the passage of a bill that would restore a measure of justice to crack cocaine sentences.

Sentencing: Mukasey Tells Congress to Pass Bill Blocking Early Release for Crack Prisoners

US Attorney General Michael Mukasey took his campaign against retroactive early releases for people sentenced under the federal crack cocaine laws to a new level Wednesday as he called on Congress to pass legislation by March 3 to block the releases. This week's call to arms comes just a few days after Mukasey first sounded the alarm about the release of crack prisoners, raising the specter of thousands of criminals pouring out of the nation's prisons and wreaking havoc on the streets.

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Michael Mukasey -- the mini-Ashcroft
Mukasey is responding to a decision by the US Sentencing Commission in December to make changes in the crack sentencing guidelines retroactive so they will apply to about 20,000 prisoners doing time under the crack laws. Earlier in the year, the commission had changed the sentencing guidelines for current offenders. The decision making the changes retroactive will go into effect March 3.

While as many as 20,000 crack prisoners could apply for sentence cuts, each one will have to go through a judicial process, and the cuts are not guaranteed. And only about 1,600 of them are eligible for sentence cuts that could result in their being released this year.

But that hasn't stopped Mukasey from playing up the fear angle. He was at it again Wednesday during a House Judiciary Committee hearing. In testimony prepared for that hearing, Mukasey said, "Overall, the Sentencing Commission estimates that retroactive applications of these lower guidelines could lead to the re-sentencing of more than 20,000 crack cocaine offenders, any number of whom will be released early."

Congress needs to act to avert that threat, Mukasey said. But given that March 3 is less than a month away, given that Congress very rarely moves so swiftly, and given that Congress passed on the chance to kill the retroactivity provision last year, Mukasey seems unlikely to get his wish.

Sentencing: US Attorney General Raises Specter of Violent Crime Jump If Crack Prisoners Released, Warns He Could Try to Block It

Twice in two days last week, US Attorney General Robert Mukasey lashed out at the US Sentencing Commission's December decision to apply cuts in federal crack sentences to prisoners currently behind bars, warning last Thursday that they could spark an increase in violent crime and suggesting the following day he may try to block the releases.

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an unfortunate choice by AG Mukasey
The Sentencing Commission decision brought a small measure of justice to some 19,500 federal prisoners, about 85% of whom are black, who were sentenced under harsh federal crack laws. Some 2,500 of them will be able to start applying for sentence reductions in March, a process that will undoubtedly drag out for months and not automatically result in reductions for everybody.

Still, speaking before the US Conference of Mayors last Thursday, Mukasey warned that some 1,600 convicted crack offenders, "many of them violent gang members," could be released as early as March. "Before we take that step, we need to think long and hard about whether that's the best way to go about this -- whether it best serves the interests of justice and public safety," Mukasey said. "A sudden influx of criminals from federal prison into your communities could lead to a surge in new victims with a tragic but predictable result."

Jurists and sentencing reform analysts contacted by the Los Angeles Times were quick to criticize Mukasey's remarks. "In the grand sweep of the nation's criminal justice system, the release of this minuscule number of prisoners will not affect crime rates. It will, however, significantly improve the perceived fairness of our federal criminal justice system," said Paul Cassell, a professor at the University of Utah law school and prominent conservative, noting that no prisoner would be released early unless a judge found he was not a threat to the community. "All of these prisoners were going to be released in the future," Cassell said, "so the retroactivity provision simply provides a slight acceleration of their release date."

Mukasey's numbers are misleading, said Marc Mauer, executive director of the Sentencing Project. "About 700,000 people are coming out of prison this year, many of whom were convicted of a violent offense. So now the change means we'll have 701,600 instead. Seems like he's kind of missing the point," said Mauer.

Criticism notwithstanding, Mukasey was back at it again last Friday. In a press briefing, he said that the Justice Department may try to block the sentencing guideline reforms that will lead to the early releases. "We're going to try to do whatever we can to mitigate it," Mukasey said. "We would obviously like to see something done about something that we think was unwise in the first place." The department could suggest legislation to block it, he said, although he acknowledged it could be hard to pass in the Democratic Congress.

"Many of those [defendants eligible for release] were involved in violence, and can be expected to continue after they get out," Mukasey told reporters. He reiterated his comments from the previous day that he was concerned the early release prisoners might not have received job training and drug treatment. "None of that will have happened, or a lot of it will not have happened, by the time some of these folks get out," he said. "And that's a cause of anxiety."

Douglas Berman, professor of law at Ohio State University and publisher of the Sentencing Law and Policy blog, speculated, "I suspect AG Mukasey is now being 'unusually outspoken' primarily to influence federal district judges as they consider motions for crack sentencing modifications. As the AG knows, no defendant will get a reduced sentence without judicial approval. During the post-Booker period, tough talk by DOJ has led judges to be particularly cautious about lenient sentences that might become 'tough-on-crime' political talking points. I suspect that the AG and main Justice hope that tough talk about going to Congress might make it easier for local federal prosecutors to oppose sentence reductions in individual cases."

Feature: Pressure Mounts on Congress As Supreme Court, Sentencing Commission Both Act to Cut Crack Cocaine Sentences

Both the US Supreme Court and the US Sentencing Commission acted this week to redress inequities in the sentencing of federal crack cocaine defendants, but changes in sentencing will be only marginal unless Congress acts to amend or undo the minimum sentences it has mandated for crack. Several bills to do so are pending, but Congress has yet to act on them.

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Karen Garrison, with picture of sons Lawrence & Lamont, innocent students convicted for crack and powder cocaine conspiracy (picture from sentencingproject.org)
Still, the harsh crack cocaine sentencing policies that have been in place for more than two decades took a one-two punch this week. On Monday, the Supreme Court upheld a sentencing decision by a federal district court judge to sentence a crack defendant to a sentence well below the federal sentencing guidelines. The following day, the Sentencing Commission announced that its earlier decision to scale down crack sentences would apply to nearly 20,000 federal inmates doing time on crack charges.

In the Supreme Court, the justices voted 7-2 to allow federal judges discretion to sentence offenders to prison terms well below the punishment range set by federal sentencing guidelines. The ruling came in a pair of cases, Kimbrough v. US and Gall v. US. The decisions offer important guidance to federal judges who have been wrestling with sentencing issues since the Supreme Court in 2005 held that federal sentencing guidelines were no longer mandatory, but only advisory.

In the first case, the trial judge sentenced convicted crack dealer Derrick Kimbrough to 10 years for his drug offense even though the guidelines called for a 14-to-17 1/2 year sentence. That judge called the guidelines "ridiculous" and "clearly inappropriate" when applied to Kimbrough. A federal appeals court in Richmond vacated the sentence, declaring that a sentence so far beneath the guidelines was unreasonable. But the Supreme Court disagreed.

"The district court properly homed in on the particular circumstances of Kimbrough's case and accorded weight to the Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with [the federal sentencing law]," wrote Justice Ruth Bader Ginsburg for the majority.

In her opinion in Kimbrough, Justice Ginsburg noted the ongoing controversy over the crack-powder cocaine sentencing disparity -- it takes 100 times as much powder cocaine as crack cocaine to trigger mandatory minimum sentences -- and wrote that judges could keep that in mind when sentencing crack defendants. "Given all this," she wrote, "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary."

In the second case, Brian Gall had been sentenced to probation for his role in an ecstasy distribution ring while he was a college student. The judge in the case cited Gall's brief participation in the scheme and his law-abiding life since then in departing from the sentencing guidelines, which called for three years in prison. That sentence was vacated by a federal appeals court in St. Louis, which held that Gall's punishment was unreasonably light. The sentencing judge must show extraordinary circumstances to justify such a sentence, the appeals court held. That's not necessary, the Supreme Court held.

"An appellate court may take the degree of variance into account and consider the extent of deviation from the guidelines, but it may not require 'extraordinary' circumstances or employ a rigid mathematical formula," wrote Justice John Paul Stevens for the majority.

The appeals court "failed to give due deference to the district court's reasoned and reasonable sentencing decision," Stevens wrote.

Taken together, the two Monday decision create a new, tougher standard for appeals courts to overturn judges' sentencing decisions. Now, the appeals court must find that a particular sentence is unreasonable and that the judge abused his or her discretion in evaluating the factors that led to that sentence.

"The cases are the clearest and strongest rulings to date that federal trial judges can exercise their discretion to take their sentencing responsibilities seriously again," said Carmen Hernandez, president of the National Association of Criminal Defense lawyers (NACDL). "There is no doubt left that an inappropriate guidelines calculation is open to challenge -- individually, as imposed in a particular case, and categorically, where the Commission has not followed Congress' command that a sentence be 'sufficient, but not greater than necessary.'"

"At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, executive director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses."

"This decision makes it clear that federal judges have a right to vote their conscience and ignore sentencing guidelines that are racist, unfair or cruel," said Bill Piper, director of national affairs for the Drug Policy Alliance. "The ruling will reduce racial disparities in the criminal justice system and hopefully send a message to federal prosecutors that they should stop wasting resources on nonviolent, low-level crack cocaine offenders and focus on taking down organized crime syndicates instead."

On Tuesday, it was the Sentencing Commission's turn to take a whack at crack sentences. In November, the commission amended the crack sentencing guidelines to reduce average sentences from 10 years and one month to eight years and 10 months, but a key question for activists, reformers, and prisoners and their families was whether the change in the guidelines would be retroactive. On Tuesday, the commission announced they would be.

"Retroactivity of the crack cocaine amendment will become effective on March 3, 2008," the commission said. "Not every crack cocaine offender will be eligible for a lower sentence under the decision. A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission's direction to consider whether lowering the offender's sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense."

"At its core, this question is one of fairness," said one commission member, Judge William K. Sessions III of the United States District Court in Vermont. "This is an historic day. This system of justice is, and must always be, colorblind."

With retroactivity, some 19,500 currently imprisoned crack offenders will be able to apply for sentence reductions. According to the commission, eligible prisoners can expect an average sentence reduction of 17%, and some 3,800 prisoners will be eligible for but not assured of release by the end of 2008. But, the commission emphasized, reductions will ultimately be up to sentencing judges, who will have wide discretion in deciding who will be granted leniency.

Senator Edward Kennedy (D-MA), chairman of the Health, Education, Labor and Pensions Committee, said he was pleased with the commission's action. "Nearly 20,000 nonviolent, low-level drug offenders will be eligible for a reduction in the excessive prison terms they received in the past because of the unacceptable disparity in the sentencing guidelines between crack cocaine and powder cocaine offenses," Kennedy said. "Those who break the law deserve to be punished, but our system says that punishment must be proportionate and fair. The current sentencing disparity between crack and powder cocaine is neither."

"The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced," said Julie Stewart, president and founder of Families Against Mandatory Minimums. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more -- mothers, fathers, daughters and sons -- who anxiously wait for them to return home," said Stewart.

But while both the Supreme Court and the Sentencing Commission have acted to reduce the harsh and disparate sentences meted out to crack offenders, congressionally-imposed mandatory minimum sentences for such offenses mean that these actions will only have a marginal impact on the length of sentences and the federal prison population. Only Congress can adjust those mandatory minimum sentences.

As one commission member, Judge Ruben Castillo of the US District Court for the Northern District of Illinois, noted, the commission has recommended since 1995 that Congress act to redress the sentencing disparity. "No one has come before us to justify the 100-to-1 ratio," Judge Castillo said, referring to the provision of federal law that imposes the same 10-year minimum sentence for possessing 50 grams of crack and for possessing 5,000 grams of powder cocaine.

Four bills have been introduced in Congress to reduce the crack/powder cocaine disparity -- two by Democrats and two by Republicans. Two of the bills, introduced by Republican Senators Jeff Sessions from Alabama and Orrin Hatch from Utah, reduce the disparity but do not eliminate it. The third bill, introduced by Democratic Senator Joe Biden from Delaware, would completely eliminate the disparity. The Senate is expected to have hearings on the legislation in February. Democratic Representative Charles Rangel from New York has introduced the only bill on the House side that would eliminate the disparity by equalizing the sentences for crack and powder cocaine at the current level of powder. The Senate is set to have hearings on the issue early next year. No hearings have been scheduled in the House, and supporters of eliminating the disparity say House Democrats are ignoring the issue.

"The biggest obstacle to eliminating the racist crack/powder disparity is not the Bush Administration or law enforcement, it's the House Democratic leadership," said Piper, who noted that House Democratic leaders had reportedly barred committees from dealing with the issue. "While the Supreme Court, the Sentencing Commission and Senate Democrats and Republicans push forward with reform, House Democrats won't even have hearings on the issue. Their silence on this issue is sending a signal to communities across the country that they don't care about reducing racial disparities."

Some Good News from the Supreme Court on Crack Sentencing

Update: Lots of analysis today at the Sentencing Law and Policy blog There was some good news today from the US Supreme Court on the subject of crack cocaine sentencing. It seems like it should be helpful in other kinds of sentencing as well. The following update, forwarded from The Sentencing Project's listserv, sums it up. I'm pleasantly surprised that this passed by a 7-2 margin -- perhaps judges will feel a little freer to give lighter sentences as a result.
SUPREME COURT RULES THAT JUDGES MAY CONSIDER HARSHNESS OF CRACK POLICY IN SENTENCING Decision Comes on Eve of U.S. Sentencing Commission Vote to Reduce Crack Sentences for Prisoners The Supreme Court ruled 7 to 2 today that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1quantity disparity between powder and crack cocaine was permissible. Justice Ruth Bader Ginsburg wrote the decision in the case, Kimbrough v. U.S. (06-6330). "At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, Executive Director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses." The Court's decision in Kimbrough comes at a time of unprecedented interest in reforming the mandatory minimum sentencing policy for crack cocaine offenses. Bipartisan legislation has been introduced in Congress and hearings are expected early next year. Moreover, tomorrow, the U.S. Sentencing Commission is expected to vote on whether its recent sentencing guideline reduction for crack cocaine offenses will apply retroactively to people currently serving time in prison. Review today's decision in Kimbrough at: http://www.scotusblog.com/wp/wp-content/uploads/2007/12/06-6330.pdf
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Washington, DC
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Feature: New, Less Severe Federal Crack Cocaine Sentencing Guidelines Go Into Effect, But Will They Be Retroactive?

Since Congress failed to act by Thursday to stop them, new, less severe federal sentencing guidelines for crack cocaine offenses promulgated by the US Sentencing Commission are now in effect. That means some 4,000 federal crack defendants each year can now count on marginally shorter sentences. For those serving the longest sentences that could mean years off.

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DEA crack cocaine photo
"We're very encouraged about this reform," said Marc Mauer, executive director of the Sentencing Project. "What the Sentencing Commission is doing is terrific and long overdue."

Under federal drug laws adopted by Congress in the mid-1980s, crack offenders are treated much more severely than powder cocaine offenders. Selling five grams of crack carries a mandatory minimum five-year prison sentence, while it takes 500 grams of powder cocaine to merit the same treatment.

The Sentencing Commission, whose job it is to set federal sentencing guidelines, responded to the mandatory minimums by adjusting the guidelines to incorporate them, resulting in guideline sentences that were above the mandatory minimums. The Commission also tried, in 1995, to reduce crack cocaine sentences to match those for powder cocaine, a move that prompted Congress to reverse the Commission's recommendation for the first time in its history. Now, in frustration with congressional failure to deal with the rising clamor over the inequities of the federal cocaine laws, the commission has amended the guidelines to lower the base offense levels for crack convictions.

The differences this time are marginal, but will still make a difference for those facing federal crack time. For example, instead of a sentencing range of 12 to 15 years for a certain drug quantity, defendants will face 10 to 12 years.

But the Sentencing Commission has not yet decided whether to make those changes retroactive, a move that, according to a Sentencing Commission impact analysis published in October, could bring relief to nearly 20,000 crack defendants currently behind federal prison bars -- about 85% of them black. It has the authority to do so; the question is whether it has the political will. The commission recently extended the period for public comment on the retroactivity issue from October 1 to November 1, and has scheduled a November 13 public hearing.

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prison dorm
The response has been intense, with the commission reporting that more than a thousand comments have been received -- most of them favoring retroactivity. That is at least in part because groups like Families Against Mandatory Minimums (FAMM) have launched a campaign to support the commission's long-held position that the racial disparity in cocaine sentences undermines the objectives of the country's sentencing laws.

It's not just FAMM. The American Bar Association, the American Civil Liberties Union, the Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, and numerous other groups have weighed in in support of retroactivity.

"Retroactivity is huge," said Nora Callahan, executive director of the November Coalition, an anti-prohibitionist group that concentrates on drug war prisoners. "If it isn't retroactive, it isn't justice," she said.

"The commission has for years acknowledged the adverse impacts of the current sentencing structure, and that hasn't gone unnoticed," Callahan continued. "The system lacks transparency, consistency, and fairness. That's not the commission's fault, but it is the commission's responsibility to address these issues. Reducing the racial disparities resulting from the crack laws cannot be accomplished without retroactivity. If there is no relief, that will only breed more despair and disrespect for the law," she said.

"I'm encouraged about retroactivity because there have been thousands of comments sent to the commission supporting it," said Mauer. "The commission has both a moral and a practical reason to support retroactivity. In terms of equity issues, there is a strong argument for retroactivity there. The commission has been on record since 1995 recommending reform of the crack penalties, and it seems to us that anyone sentenced since then should certainly be eligible to receive these reductions. If the commission supports retroactivity, it would be entirely consistent with what it has been recommending for years."

The Sentencing Commission's crack sentencing guideline amendment that went into effect this week and its pending decision on retroactivity come as the federal crack laws are under attack from all sides. The Supreme Court is considering them in the recently heard Kimbrough case, and at least three bills to address the crack-powder sentencing disparity are pending in Congress.

"There is more momentum now than at any time since the laws were established two decades ago," said Mauer. "It is that overdue recognition that the laws don't make sense, they're ineffective, and they are having a terrible racial impact. It's very encouraging to see this critique of the crack laws coming from all these different directions. We don't know how it will all play out, but there is a growing consensus that some reform will take place."

Hopefully it will include those already imprisoned under the draconian federal crack laws, some of whom have been behind bars since 1992. If not, the bulging federal prison system could see ominous rumbling like it hasn't seen for a decade -- the last time crack prisoners got their hopes up, only to see them dashed.

Feature: Supreme Court Weighs Arguments on Limits of Judicial Discretion in Sentencing

The US Supreme Court Tuesday heard oral arguments in a pair of drug cases that will help clarify how much discretion federal judges have in sentencing under federal sentencing guidelines. When rendered, the court's opinion could impact the tens of thousands of people sentenced in the federal courts each year.

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US Supreme Court
While one of the cases involves a man sentenced under the crack cocaine laws, which punish crack much more severely than powder cocaine, the court's decision will have no impact on the federal mandatory minimum sentence laws under which many drug offenders are subjected to lengthy prison sentences.

The court's taking up the two sentencing guideline cases comes as the nation's quarter-century-long experiment with mass incarceration is under increasing pressure. The federal prison population has expanded nearly ten-fold from 24,000 prisoners in 1982 to more than 200,000 this year, more than half of them drug offenders under the harsh regime of sentencing guidelines and mandatory minimum sentences.

The US Sentencing Commission is set to reduce the guidelines' crack-powder cocaine sentencing disparity administratively November 1 unless Congress acts to block it, though it has not yet decided whether to make the change retroactive. While the proposed reduction is slighter than advocates have called for, if made retroactive it would help about 19,500 current prisoners, most notably those serving the longer sentences, by an average of 27 months or relief -- 1,315 current prisoners would receive sentences reductions of 49 months or more. At least three bills addressing that disparity have been filed in Congress. And just yesterday, Sen. Jim Webb (D-VA), a member the Joint Economic Committee, held a hearing titled "Mass Incarceration in the United States: At What Cost?"

The Supreme Court threw the federal sentencing structure into a sort of judicial chaos when it ruled two years ago in Booker v. US, and a related case, US v. Fan Fan, that federal sentencing guidelines, which had for the past two decades limited judges' sentencing decisions to finding the proper box on a sentencing grid, were no longer mandatory, but only advisory. Since then, federal district and appellate courts have struggled to determine just what that means, with some judges sometimes handing out sentences below the guidelines, which have in turn sometimes been overturned on appeal.

The two cases before the court represent different aspects of the federal sentencing conundrum. In Gall v. US, Brian Gall was convicted of conspiracy to sell ecstasy in Iowa, but rather than sentence him to the 30-37 months in prison suggested by the guidelines, his sentencing judge gave him probation, noting that he had walked away from the conspiracy years earlier and led an exemplary life since. The probationary sentence was overturned by the 8th US Circuit Court of Appeals in St. Louis.

In Kimbrough v. US, Derrick Kimbrough was convicted of selling crack and powder cocaine in Virginia. Citing Kimbrough's military service and the controversy over the crack-powder cocaine sentencing disparity, his trial judge sentenced him to the mandatory minimum 15 years instead of the 19-22 years suggested by the guidelines. His sentence, too, was overturned, this time by the US 4th Circuit Court of Appeals in Richmond.

In Gall, the appeals court held that such an "extraordinary" departure from the guidelines required an "extraordinary" justification. In Kimbrough, the appeals court held that judges could not reject a guidelines sentence because of their disagreement with underlying sentencing policy.

In oral arguments in the two cases Tuesday, the court displayed some of the same confusion and ambivalence its previous sentencing rulings have generated on the federal bench. The court is caught between two seemingly irreconcilable goals: to ensure similar sentences for similar offenses, and to restore a measure of discretion to judges.

"It may be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory," Justice Antonin Scalia observed. But Scalia has led the bloc of the court that has moved to undo the mandatory federal guidelines scheme.

Justice Stephen Breyer, who helped author the guidelines and remains their strongest proponent on the court, accused Kimbrough's counsel, Michael Nachmanoff, of not offering the court a way out of its dilemma after Nachmanoff insisted that Booker required that judges be granted reasonable flexibility." You're saying either we have to make it [the sentencing guidelines] unconstitutional," he said, "or you have to say anything goes."

"Your position is not anything goes," Scalia jumped in in Nachmanoff's defense. "It's anything that's reasonable goes."

That led Justice Anthony M. Kennedy to ask, "How do we define 'reasonable?'" And so the argument turned in circles.

For his part, Justice Department lawyer Michael Dreeben, who argued both cases, argued that Congress intended to punish crack cocaine more seriously than powder, and judges should heed Congress' will. "For a judge to say Congress is crazy," Dreeben said, "is a sort of textbook example of an unreasonable sentencing factor."

"The guidelines are only guidelines. They are advisory," Scalia shot back, adding that sometimes sentences were too long.

While the tenor of oral arguments suggested a favorable ruling may be coming, especially for Kimbrough, observers of the court were reluctant to speculate. But they were not reluctant to talk about what it all means.

"Everyone is struggling" with the federal sentencing conundrum, said Doug Berman, professor of law at the Ohio State University Moritz College of Law and author of the Sentencing Law and Policy blog. "Most prominently, they are trying to figure out what to make of this opaque standard of reasonableness," he said.

"If the Supreme Court reverses the circuit courts and upholds the trial courts, emphasizing the discretion district court judges have to reduce sentences below the guidelines, that could have a significant impact, especially on first offenders and others with mitigating factors," Berman said.

"The national debate over the excessive penalties prescribed under the federal sentencing guidelines for low-level crack cocaine offenses has infiltrated Congress, the advocacy community and now the US Supreme Court," said Marc Mauer, executive director of The Sentencing Project. "There is nearly universal agreement that current sentences for crack cocaine offenses are unfair and ineffective. The court's action will certainly influence the policy debate," he added.

"The Supreme Court's consideration of the magnitude of discretion afforded to federal sentencing judges is a step towards creating a more just sentencing system," said Mauer. "In light of recent events in Jena, Louisiana, and concerns about disparity within the justice system, a new consciousness about the unfairness and ineffectiveness of our criminal justice system has emerged," Mauer continued.

"These cases have to be considered against the backdrop of extraordinarily long terms for minor drug offenders," Berman said. "That the government can argue that sending Kimbrough to prison for 15 years is unreasonably lenient and the length of that sentence hardly gets questioned suggests that everyone has drunk the federal sentencing guideline kool-aid," he said.

For some groups with a deep interest in justice in sentencing, whatever the Supreme Court does won't be enough. "Whatever the court decides, the real solution to unjust crack sentences lies in Congress," said Mary Price, vice president and general counsel for Families Against Mandatory Minimums. "Even if the court permits judges to avoid unjust crack sentences called for by the guidelines, many defendants will still be sentenced under unjust mandatory minimum statutes. Congress made a mistake by basing sentencing almost exclusively on one factor -- drug quantity. Judges should be permitted to sentence based on all facts about the defendant and the offense, not just quantity. These cases show why mandatory minimum sentencing laws are unwise, unnecessary, and unjust."

It goes even deeper than that, said Chuck Armsbury of the November Coalition, an anti-prohibitionist group that concentrates on freeing drug war prisoners. "No amount of Supreme Court tinkering with the sentencing guidelines can guarantee an end to sentencing disparities," he said. "Most of the sentencing disparity is due to rules and results of deal making by informants, police and prosecutors working together secretly. The justices are unlikely to admit they can't determine the fairness of a hidden system's operations," he argued. "To fix this broken system would mean to rein in police, prosecutors and the snitch system producing substantial differences in drug sentences."

That's not going to happen through the Supreme Court chipping at the edges of draconian sentencing, Armsbury said. "Even if they win, the cases under review this week will likely join a long line of previous Supreme Court cases that failed to correct wrongful sentencing practices or result in the release of thousands of over-incarcerated people, the great majority convicted of drug crimes."

Still, if further reform of the draconian federal sentencing laws comes out of this pair of cases, some drug defendants will get lesser sentences, and that's a good thing. But as the critics point out, it's not enough. The mass incarceration juggernaut has been speeding along for decades now, and it's going to require more than some Supreme Court decisions tinkering at the edges to achieve fundamental change.

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