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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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