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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. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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