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Permanent retroactivity applied to crack-cocaine sentence reductions

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Thousands of federal inmates nationally and more than 200 from Indiana could get time shaved off their prison terms for crack-cocaine convictions, after the U.S. Sentencing Commission voted to make reductions retroactive starting later this year.

The U.S. Sentencing Commission voted unanimously June 30 that proposed amendments to the guidelines that are part of the Fair Sentencing Act of 2010 should become permanently retroactive, effective Nov. 1.

This is the latest in a multi-year push to revise the mandatory minimum-sentencing guidelines for those who’d been convicted for crack-cocaine offenses, a legal standard that’s been declared unreasonable and unconstitutional since first being implemented three decades ago.

Since the 1980s, the criminal justice system has gone by what’s known as the 100-to-1 ratio: someone convicted of possessing and intending to distribute five grams of crack cocaine in rock form would receive the same five-year minimum sentence as those doing the same with 500 grams or more of the powder-form cocaine.

But after landmark rulings from the Supreme Court of the United States in 2005 that restructured the nation’s sentencing structure, federal judges began looking at changes. Judge David F. Hamilton – as a Southern District of Indiana judge before his elevation to the 7th Circuit Court of Appeals – studied that issue as part of the Committee on Criminal Law of the U.S. Judicial Conference and ultimately wrote to the Sentencing Commission about allowing retroactive reductions to those sentences.

The commission first voted in late 2007 to make sentencing reductions retroactive beginning in March 2008, and since then more than 16,000 convicts – 65 percent of those who requested relief – have been granted reduced sentences throughout the country.

The Northern District of Indiana has granted 80 percent and reduced 218 sentences, while the Southern District has granted about 59 percent and reduced 64 sentences, according to sentencing data. Overall, data shows the Northern District has reduced sentences by 17.2 percent – or 22 months total – while the Southern District has lowered sentences by 15.5 percent – or 31 months total based on the cases it’s handled.

The commission has continued studying that issue through the years. The Fair Sentencing Act passed in 2010 that took effect Aug. 3, 2010, included lower sentences for crack-cocaine offenses going forward, but didn’t address retroactivity and that is what the proposed amendments to the guidelines focus on. A full day hearing June 1 brought in national experts to speak on the issue and why it’s needed, and the commission members spent the past month considering views from Congress, the U.S. Department of Justice, and the federal judiciary and legal community before making this decision.

If Congress doesn’t disapprove of the amendment and revise it, then the retroactive reductions would go into effect and mean federal judges would be responsible for determining if convicts should receive lower sentences. Based on fiscal year 2010 sentencing data, approximately 12,000 offenders may be eligible to receive a sentence reduction, and the average reduction for those eligible would be about 37 months – leading to an average sentence, even after reductions, of about 10 years. The Bureau of Prisons estimates that this retroactivity could result in more than $200 million in savings during the first five years after retroactivity takes effect.

For Indiana going forward, data shows that 142 inmates sentenced between 1992 and 2010 could be eligible for lower sentences in the Northern District and 80 might be eligible in the Southern District. Most would be eligible for release from prison either immediately on Nov. 1, 2011, three years out, or more than six years after the retroactivity application takes effect, figures show, depending on when they were originally sentenced.

Now on the 7th Circuit Court of Appeals, Judge Hamilton told Indiana Lawyer that he hasn’t followed this issue closely recently but that generally he expects new cases to materialize in the District and Circuit courts as a result. He declined to speak more specifically because those issues might come before him, but judicial decisions recently show this retroactivity topic has been controversial.

A Wisconsin case before the 7th Circuit earlier this year hit on the topic, questioning when the Fair Sentencing Act and crack-cocaine offenses should be applied to those sentenced after its passage in 2010 for offenses convicted prior to that time. That case was U.S. v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011), and a three-judge panel decided nothing could be done retroactively. The appellate court denied rehearing the case en banc, though Judges Hamilton and Ann C. Williams both dissented on that denial and said they would have agreed to hear it and apply the Fair Sentencing Act retroactively.

The 7th Circuit was the first nationally to address that question, and now with this new retroactivity guideline amendment, those types of cases could have a different outcome.
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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