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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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