Crack Winpopup Lan Messenger 3.8

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Winpopup LAN Messenger 5.3, 75588 records found, first 100 of them are: Winpopup Lan Messenger 5.1 key generator. Softros Lan Messenger 3.6 crack. Winpopup LAN Messenger 5.3 Crack Keygen/Serial. ScreenShot. WinPopup Gold 5.14; WinPopup ActiveX 1.04; Winpooch 0.6.6.1100; WinPond 1 7; WinPokerBot 3.0. It is simple and easy to use LAN messenger. OfficePopup could be used in receive-only mode. It is fully compatible with Winpopup LAN Messenger and Winpopup Server. Improve Office Communications Between Employees in Your Company When you operate a small business, you have no problem communicating with all your employees all at once. When your company grows, becomes more and more difficult to communicate. You either run across the building to ask a few questions to several employees, or waste precious time setting up a common meeting. You can ask the same questions by email, but in the modern days of accelerated pace of work in a typical office environment, email is plain too slow. If you have a LAN, or even a secured Intranet network, then you posess a resource that is capable to deliver instant messages to your employees in zero time, and it is just the time to consider a corporate instant messaging solution. Send Messages Securely, Strictly Within Your Local Network There are many messenger services and software products available. Most such products make use of a central server that co-ordinates communications. If the server is located outside of your network, it poses a great security threat to your company. Thanks to Winpopup LAN Messenger support for the modern secure protocol, no information ever leaves your local network. All communication is encrypted with RC4, making messages transmitted over the LAN impossible to intercept. No Internet Connection Required Most commercial messenger products require Internet access to connect to their authorization server. Not only this creates a security threat in your network, but the whole service becomes unavailable should the Internet connection fail. Winpopup LAN Messenger does not use an external connection to the Internet, nor does it require an IP address. Instead, all communication remains within the local network area, never leaving the secured Intranet environment. One Network. Two Modes of Operation Winpopup LAN Messenger supports two modes of operation: one with a server, and one without. In the server mode, Winpopup Server is installed on a dedicated messaging server in your network. The Winpopup Server handles all communication, including off-line messaging and multi-segment network support, and provides additional level of security by controlling user authorization. Winpopup LAN Messenger works perfectly without a dedicated messaging server, automatically detecting Winpopup users on the corporate network. In this mode, no dedicated server and no administration are required. Using Winpopup LAN Messenger in serverless mode is as simple as just starting Winpopup LAN Messenger on a PC. Send Immediate Announcements to Employees or Groups If an urgent group meeting is required, there is no faster way to call your employees then using the group announce feature of Winpopup LAN Messenger. Just select a group of employees and type your message, and it will be instantly delivered to entire group. Group Meetings and Discussions on LAN Ever had a small issue or a quick question, but noone available to solve it. Ask your question to a group of employees in an instant. Winpopup LAN Messenger supports group broadcasting and group chats, allowing the entire group to have a discussion in real time. Easy Learning Curve Winpopup LAN Messenger supports extended and simple views, the latter bearing resemblance to well-known messengers such as ICQ or MSN Messenger. As most computer users are very comfortable with these products, they will spend no time to master your new corporate messenger. Found 6 results for Winpopup Lan Messenger 5.3. Full version downloads available, all hosted on high speed servers. Winpopup LAN Messenger

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Torrent Name AGE FILES SIZE; Solid-liquid Filtration And Separation Technology - A Rushton, A S Ward, R G Holdich VCH, 1996 pdf. Date: 05/23/15.

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Crack By Alec Muffett

Alec David Edward Muffett born April 22, 1968 is a internet-security evangelist, architect, and software engineer. He is principally known for his work on Crack, the original Unix password cracker, and for the CrackLib password-integrity testing library; he is also active in the Open Source software community. Alec Muffett was born in Pennsylvania, the third child, and only son, of David Joseph Mead Muffett and Kathleen Jubb; his sisters are Louise and Amanda. Alec was educated at Sacred Heart College, Droitwich and University College London, where he studied Astronomy. 1 After graduation he commenced work as a lab assistant and Unix administrator at the university. In 1988 he took a position as Systems Programmer at the University of Wales in Aberystwyth, and it was there that he wrote the first version of the dictionary attack tool Crack. He was active on the Zardoz list during this period. Muffett joined Sun Microsystems in 1992, working initially as a systems administrator. He rose through the ranks to become the Principal Engineer for Security, a position which he held until he was retrenched, with many others, in 2009 2 shortly before Oracle acquired Sun. While at Sun he was one of the researchers who worked on the factorization of the 512 bit RSA Challenge Number; RSA-155 was successfully factorized in August 1999. 3 Muffett also worked on the Sun MD5 hash algorithm, which was introduced in Solaris 9 update 2. The new algorithm drew on Muffett s work in pluggable crypt, and it is now implemented in many different languages, for example Python. 4 The algorithm uses the complete text of the famous soliloquy from Shakespeare s Hamlet: To be or not to be, that is the question as the constant data. Muffett justified the choice of this text because it exposes more programmers to Shakespeare, which has got to be a good thing. 5 After a sabbatical year, Muffett began to work on The Mine. Project project, as lead developer. He subsequently became a director and consultant at Green Lane Security; he also consults for Surevine. He became a director of the Open Rights Group in October 2011. 6 Muffett blogs professionally, for Computer World at Unscrewing Security and personally at Dropsafe, and has numerous publications to his credit, besides being an frequent presenter at technical conferences. 7 Muffett is the a co-inventor with Darren Moffat and Casper Dik of the patent Method and apparatus for implementing a pluggable password obscuring mechanism, United States Patent 7,249,260, Issued June 12, 2003. 8 Alec Muffett s father, David, was a larger than life character: 9 a former British Colonial Administrator in Africa, big game hunter and professor of African studies at Duquesne University at Pittsburgh. 10 Alec has inherited many of his father s characteristics, and an appreciation of his approach to life, and security, can be gained by watching his famous Defence in depth: castle assault video.

Muffett lives in Hartley Wintney, Hampshire, United Kingdom and his interests include cooking, photography and bicycles citation needed. He works as a Software Engineer for Facebook. References edit

1, ONEIS Bio.

2, LinkedIn - Alec Muffett.

3 RSA-155 is factored.

4 passlib.hash.sun_md5_crypt - Sun MD5 Crypt

5 OpenSolaris, Pluggable Crypt, and the SunMD5 Password Hash Algorithm

6 Board of Directors, Open Rights Group

Alec Muffett s Speaking History, Lanyrd.

Patent: Method and apparatus for implementing a pluggable password obscuring mechanism, Google Patents.

Muffett lived a life full of cannibals and councils. Worcester News.

David Muffett - obituary, Telegraph.

External links edit

Factorization of a 512 Bit RSA Modulus

Crypticide I: Thirteen Years of Crack

Alec Muffett: Almost Everything You Ever Wanted To Know About Security

Alec Muffett, Proper Care and Feeding of Firewalls

Alec Muffett, WAN-hacking with AutoHack, Auditing security behind the firewall.

I was recently reading a book and i saw that theres the program crack for are easy to crack using the program crack by Alec Muffet or Alec Muffett, 1991.

Crack is a Unix password cracking program designed to allow system administrators to locate users who may have weak passwords vulnerable to a dictionary attack. Crack was the first standalone password cracker for Unix systems 1 2 3 4 and later the first to introduce programmable dictionary generation. Crack began in 1990 when Alec Muffett, a Unix system administrator at the University of Wales Aberystwyth was trying to improve Dan Farmer s pwc cracker in COPS and found that by re-engineering its memory management he got a noticeable performance increase. This led to a total rewrite 5 which became Crack v2.0 and further development to improve usability.

Contents

1 Public Releases

2 Legal issues arising from using Crack

3 Programmable dictionary generator

4 Network distributed password cracking

5 See also

6 References

7 External links

Public Releases edit

The first public release of Crack was version 2.7a, which was posted to the Usenet newsgroups alt.sources and alt.security on 15 July 1991. Crack v3.2a fcrypt, posted to comp.sources.misc on 23 August 1991, introduced an optimised version of the Unix crypt function but was still only really a faster version of what was already available in other packages. The release of Crack v4.0a on 3 November 1991, however, introduced several new features that made it a formidable tool in the system administrators arsenal. Programmable dictionary generator

Network distributed password cracking

Crack v5.0a 6 released in 2000 did not introduce any new features, but instead concentrated on improving the code and introducing more flexibility, such as the ability to integrate other crypt variants such as those needed to attack the MD5 password hashes used on more modern Unix, Linux and Windows NT 7 systems. It also bundled Crack v6 - a minimalist password cracker and Crack v7 - a brute force password cracker. GCUF is a very lRGE UNIVERISTY

Legal issues arising from using Crack edit

Randal L. Schwartz, a notable Perl programming expert, in 1995 was prosecuted for using Crack 8 9 on the password file of a system at Intel, a case the verdict of which was eventually expunged. 10

Crack was also used by Kevin Mitnick when hacking into Sun Microsystems in 1993. 11

Programmable dictionary generator edit

While traditional password cracking tools simply fed a pre-existing dictionary of words through the crypt function Crack v4.0a introduced the ability to apply rules to this word list to generate modified versions of these word lists. These could range from the simple do not change to the extremely complex - the documentation gives this as an example:

X 8l/i/olsi1so0

Reject the word unless it is less than 8 characters long, lowercase the word, reject it if it does not contain both the letter i and the letter o, substitute all i s for 1 s, substitute all o s for 0 s, and append an sign. These rules could also process the GECOS field in the password file, allowing the program to use the stored names of the users in addition to the existing word lists. Crack s dictionary generation rule syntax was subsequently borrowed 12 and extended 13 by Solar Designer for John the Ripper. The dictionary generation software for Crack was subsequently reused by Muffett 14 to create CrackLib, a proactive password checking library that is bundled with Debian 15 and Red Hat Enterprise Linux-derived 16 Linux distributions. Network distributed password cracking edit

As password cracking is inherently embarrassingly parallel Crack v4.0a introduced the ability to use a network of heterogeneous workstations connected by a shared filesystem as parts of a distributed password cracking effort. All that was required for this was to provide Crack with a configuration file containing the machine names, processing power rates and flags required to build Crack on those machines and call it with the -network option. See also edit

Computer security

Password cracking

References edit

David R. Mirza Ahmad; Ryan Russell 25 April 2002. Hack proofing your network. Syngress. Pp. 181–. ISBN 978-1-928994-70-1. Retrieved 17 February 2012. 

William R. Cheswick; Steven M. Bellovin; Aviel D. Rubin 2003. Firewalls and Internet security: repelling the wily hacker. Addison-Wesley Professional. Pp. 129–. ISBN 978-0-201-63466-2. Retrieved 17 February 2012. 

Venema, Wietse 1996-07-01. Murphy s law and computer security. Proceedings of the Sixth USENIX UNIX Security Symposium. Retrieved 2012-02-17. 

Anonymous 2003. Maximum security. Sams Publishing. Pp. 269–. ISBN 978-0-672-32459-8. Retrieved 17 February 2012. 

Muffett, Alec. Crypticide I: Thirteen Years of Crack. Blog post. Retrieved 2012-02-17. 

Muffett, Alec. Crack v5.0. Retrieved 2012-02-17. 

Sverre H. Huseby 15 March 2004. Innocent code: a security wake-up call for Web programmers. John Wiley Sons. Pp. 148–. ISBN 978-0-470-85744-1. Retrieved 17 February 2012. 

Simson Garfinkel; Gene Spafford; Alan Schwartz 17 May 2011. Practical UNIX and Internet Security. O Reilly Media, Inc. Pp. 608–. ISBN 978-1-4493-1012-7. Retrieved 17 February 2012. 

Hakim, Anthony 2004-10-10, Global Information Assurance Certification Paper Global Information Assurance Certification Paper, Intel v. Randal L. Schwartz PDF format requires url help, SANS Institute, p. 5, retrieved 2012-02-17 

Randal Schwartz s Charges Expunged - Slashdot. Retrieved 2012-02-17. 

Mitnick, Kevin 2011. Here comes the Sun. Ghost in the Wires. Little, Brown. ISBN 978-0-316-03770-9.  access-date requires url help

Designer, Solar. John the Ripper - credits. Solar Designer. Retrieved 2012-02-17. 

Designer, Solar. John the Ripper - wordlist rules syntax. Solar Designer. Retrieved 2012-02-17. 

David N. Blank-Edelman 21 May 2009. Automating system administration with Perl. O Reilly Media, Inc. Pp. 461–. ISBN 978-0-596-00639-6. Retrieved 17 February 2012. 

Debian Package Search. Retrieved 2012-02-17. 

CrackLib Enhancement Update. Retrieved 2012-02-17. 

External links edit

Password cracking - A quick guide to success.

• Alec David Edward Muffett born April 22, 1968 is a internet-security evangelist, architect, and software engineer. He is principally known for his work on Crack.
• Information Security Services, News, Files, Tools, Exploits, Advisories and Whitepapers.
• SNAIL: Alec Muffett, Computer Unit, Llandinam UCW, Aberystwyth, UK, SY23 3DB Xecho Crack 2.7a Password Cracker by ADE Muffett, 1991 X Xmake X.
• Alec Muffett - Security, Open Source, Social Media Social Networks Crack gets a bit-part in Underground, The Julian Assange Story /cc a.
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Crack Sentencing Guidelines

April 26, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Purposes of Punishment and Sentencing.

Jul 25, 2013  A decision allowing parts of the Fair Sentencing Act to apply retroactively, affecting thousands of federal inmates sentenced for crack cocaine.

Report on Cocaine and Federal Sentencing PolicyChapter 6 The National Legislative and Law Enforcement Response to Cocaine A. INTRODUCTION.

WASHINGTON A year ago, a drug dealer caught with 50 grams of crack cocaine faced a mandatory 10 years in federal prison. Today, new rules cut that to as little as five years, and thousands of inmates not covered by the change are saying their sentences should be reduced, too.

Please make this situation fair to all of us, prisoner Shauna Barry-Scott wrote from West Virginia to the U.S. Sentencing Commission, which oversees federal sentencing guidelines. Treat us the same.

The commission meets Wednesday in Washington to consider making the new crack sentencing guidelines retroactive, a step that could bring early release for as many as 1 in every 18 federal prisoners, or approximately 12,000 inmates. The commission has already received more than 37,000 letters on the issue, most from inmates and their families and friends. Many of the letters are form letters drafted by interest groups such as Families Against Mandatory Minimums, but others contain personal pleas. A woman from New York wrote to say her nephew should be given another chance at society. A mother from Illinois said her child was sentenced very harshly.

Prisoners have also been writing judges and public defenders, asking if the new law might help them.

Dear Judge Blake, I am forwarding this letter to you for your assistance that concerns the new crack cocaine law that was just passed, Steven Harris wrote to a federal judge in Maryland, asking about his 10-year sentence for crack possession and possession of a firearm during the crime. I would like to know if this law will help me.

Congress and President Barack Obama agreed in August to reduce the minimum penalties for crack. But the law did not apply to prisoners who were locked up before the change. Michael Nachmanoff, the lead public defender in the eastern district of Virginia, where about 1,000 prisoners would be affected, the most of any area in the country, says his office has been getting about a half-dozen calls or letters a month. Nachmanoff, who will testify before the commission Wednesday, says his office is prepared to act if the commission makes changes. And he says anyone who worries that retroactivity would be going light on offenders is wrong.

All of these people will wind up serving long sentences, he said. This is really about fixing a really unfair problem that now everybody recognizes was wrong.

Since the 1990s, advocates have complained that crack offenders are treated more harshly than those arrested with powdered cocaine. Many critics view the disparity as racial discrimination because black drug offenders are more likely to be charged with federal crack offenses and to serve longer prison terms than other offenders. The Fair Sentencing Act, signed by Obama in August, attempts to remedy that disparity by changing the amount of crack cocaine required to trigger five and 10-year mandatory sentences. Before the law was passed, a person convicted of possessing 5 grams of crack cocaine – about the weight of five packets of Sweet n Low – automatically got sentenced to five years. Now it takes 28 grams to trigger a five-year mandatory sentence, an amount more in line with powdered cocaine. Possessing 280 grams of crack triggers a 10-year sentence as opposed to the old standard of 50 grams – about the same weight as 10 nickels. Inmates who received the mandatory minimum sentence under the old system will not be eligible for early release because only Congress can make mandatory minimum sentences retroactive. But inmates who received above the minimum could see their sentences reduced, and others whose offense did not rise to the level of a mandatory minimum could be eligible for earlier release, too. The commission estimates that the average sentence reduction for applicable inmates would be approximately three years. Not everyone supports the proposal for retroactivity. The Fraternal Order of Police opposed the law Obama signed and plans to oppose retroactivity before the commission, arguing criminals were aware of the penalties for their actions.

They knew what they were doing. They went into it with their eyes open, Jim Pasco, executive director of the Fraternal Order of Police, which represents more than 300,000 law enforcement officers. Prisoners charged with crack offenses have already had one recent experience with retroactive sentence reductions. In 2007, the commission revised the crack sentencing guidelines, reducing sentences by an average of two years. Approximately 16,000 offenders had their sentences reduced. For the change to be made retroactive, four members of the six-member commission would have to vote to support the idea. If that happens, Congress could still reject or modify the guidelines until the end of October. Given that the Fair Sentencing Act passed Congress almost unanimously and that the commission has acted previously to make sentencing changes retroactive, Marc Mauer of the Washington-based Sentencing Project said he is cautiously optimistic that the proposal for retroactivity will be adopted. The commission is expected to rule in the next few months, but that ruling can t come soon enough for some prisoners.

I love and miss my children very much, inmate Samuel Tirado wrote to the commission from his New Jersey penitentiary. And I hope to be reunited with them sooner than 2022.

Explore this site to learn more about crack cocaine sentencing reform and how to end the sentencing disparity.

May 31, 2011  WASHINGTON A year ago, a drug dealer caught with 50 grams of crack cocaine faced a mandatory 10 years in federal prison. Today, new rules cut.

Friday, October 30, 2015

Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences

Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.  Here are a few posts from eight years ago on this blog on that topic:

I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing. Here are excerpts:

Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She s also reiterating her support for a ban on racial profiling by law enforcement officials. A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign. Mrs. Clinton s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1. Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. Senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far. On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity. A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn t enough. The ACLU called the 2010 legislation a step toward fairness but said more was needed. Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses the only truly fair ratio is 1:1, the group said. The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines. As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.

October 30, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report, Race, Class, and Gender, Sentences Reconsidered, Who Sentences. Permalink Comments 15

Monday, August 03, 2015

US Sentencing Commission releases big report on 5-year impact of Fair Sentencing Act

As reported in this official USSC news release, today the United States Sentencing Commission submitted to Congress its report assessing the impact of the Fair Sentencing Act of 2010, which among other things reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine. Here are highlights of an encouraging report via the news release:

Chief Judge Patti B. Saris, Chair of the Commission, said: We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine. All this occurred while crack cocaine use continued to decline.

To assess the impact of the FSA, the Commission analyzed external data sources and undertook statistical analyses of its own federal sentencing data spanning before and after the enactment of the FSA. Among other things, the study shows that:

Many fewer crack cocaine offenders have been prosecuted annually since the FSA, although the number is still substantial;

Crack cocaine offenders prosecuted after the FSA are, on average, about as serious as those prosecuted before the FSA;

Rates of crack cocaine offenders cooperating with law enforcement have not changed despite the reduction in penalties; and,

Average crack cocaine sentences are lower, and are now closer to average powder cocaine sentences.

The full report, which runs almost 100 pages including all its materials is available at this link. The USSC s website now has this terrific page with various report-related materials and links for easy consumption of all the data in the report. August 3, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment Permalink Comments 0

Tuesday, March 25, 2014

Great coverage of crack crimes and punishments via Al Jazeera America

I am pleased and a bit overwhelmed by this huge new series of stories, infographics, pictures, personal stories concerning crack crimes and punishment put together by Al Jazeera America.  Here are links to just some parts of the series:

Waiting on a fix: Legal legacy of the crack epidemic: In the 1980s, the US went to war on crack. Thirty years on, judiciary is still hooked on unfair and unequal sentencing

Documenting the ravages of the 1980s crack epidemic: Renowned documentary photographer Eugene Richards recorded the brutal realities facing communities affected by crack

Life without parole is a walking death : Andre Badley, imprisoned in 1997 for dealing crack, could spend his life behind bars while bigger dealers go free. A rush to judgment: In 1986, lawmakers wrote new mandatory crack cocaine penalties in a few short days, using the advice of a perjurer. March 25, 2014 in Data on sentencing, Drug Offense Sentencing, New crack statute and the FSA s impact, New USSC crack guidelines and report, Race, Class, and Gender Permalink Comments 8 TrackBack

Saturday, August 24, 2013

AG Holder s speech at Dream March stresses fairness and equal justice as federal crack prisoners keep waiting

I just got an e-mail providing this link to the text of Attorney General Eric Holder s prepared remarks which he delivered today in Washington DC as part of the National Action to Realize the Dream March. Here are some excerpts that caught my eye with my emphasis added :

It is an honor to be here among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized from the streets of this nation, to the halls of our Capitol to advance the cause of justice. Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law.   He assured his fellow citizens that this goal was within reach so long as they kept faith with one another, and maintained the courage and commitment to work toward it.  And he urged them to do just that.  By calling for no more and no less than equal justice.  By standing up for the civil rights to which everyone is entitled.  And by speaking out in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that s been woven through our history since this country s earliest days: that all are created equal. But today s observance is about far more than reflecting on our past.  Today s March is also about committing to shape the future we will share a future that preserves the progress, and builds on the achievements, that have led us to this moment.  Today, we look to the work that remains unfinished, and make note of our nation s shortcomings, not because we wish to dwell on imperfection but because, as those who came before us, we love this great country.  We want this nation to be all that it was designed to be and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead and by the journey that still stretches before us. This morning, we affirm that this struggle must, and will, go on in the cause of our nation s quest for justice until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices.  It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law.  And it must go on until every action we take reflects our values and that which is best about us.  It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many. The America envisioned at this site 50 years ago the beloved community has not yet been realized.  But half a century after the March, and 150 years after Emancipation, it is finally within our grasp.  Together through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents I know that, in the 21st century, we will see an America that is more perfect and more fair.

To AG Holder s credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed and still believes. That a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law.  But since that time, the Obama Administration has suggested it is content with Congress s decision to merely reduce from 100-1 to 18-1 the differential treatment of drug quantities for crack and powder.  Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law s reduced crack sentencing terms. Indeed, from its initial advocacy to limit pipeline cases from getting the benefit of the FSA s reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department s actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013. 

Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA.  But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws. Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:

I dream of the day when all of God s children will be able to sing with a new meaning, My country, tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim s pride, from every mountainside, let freedom ring.

And if America is to be a great nation this must become true.  So let freedom ring from the prodigious hilltops of New Hampshire.  Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania. Let freedom ring from the snowcapped Rockies of Colorado.  Let freedom ring from the curvaceous slopes of California. But not only that; let freedom ring from Stone Mountain of Georgia.  Let freedom ring from Lookout Mountain of Tennessee. Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring. And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, Free at last. Free at last. Thank God Almighty, we are free at last.

I suppose we all need to just keep dreaming, while still stressing the fierce urgency of now.

August 24, 2013 in New crack statute and the FSA s impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences. Permalink Comments 32 TrackBack

Tuesday, July 30, 2013

New USSC data on implimentation and impact of retroactive crack guidelines after FSA

I just noticed on the US Sentencing Commission s website this new data report carrying the title Preliminary Crack Retroactivity Data Report; Fair Sentencing Act.   This report, dated July 2013, appears to be the latest accounting of who has and has not received the benefit of retroactive application of the 2011 amendments to the federal sentencing guidelines for crack offenses which implemented the new 18-1 crack/powder ratio that Congress created via the Fair Sentencing Act of 2010. Based on the information reflected in Tables 1 amd 8 of this data report, it appears that just over 7300 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA-inspired crack guidelines being made retroactive.  Significantly, this average reduction merely lowered the average crack sentence from roughly 12.5 years to just over 10 years for the group receiving sentence reductions; this means that even the new-average-lowered sentence for crack offenses were still significantly higher that the average sentences imposed for any other federal drug crimes. For those eager to gauge the potential economic impact of FSA retroactivity, it appears that the retroactive guidelines as implemented has now saved almost 16,000 cumulative years of federal imprisonment, with a consequent savings to federal taxpayers of approximately a half-billion dollars based on a conservative estimate of a taxpayer cost of roughly 30,000 per prisoner for each year of federal incarceration.   And for those concerned about racial sentencing dynamics, Table 5 of this data reports that more than 85 of those benefiting from reduced crack sentences have been black prisoners, demonstrating once again the historically racialized reality of federal crack prosecutions. As I have said in prior posts, if those defendants who received reduced sentences find ways to become productive and tax-paying citizens, the benefits to society will profoundly transcend the saved incarceration costs. And it those defendants do not learn the error of their law-breaking ways, I both expect and hope they will really get the sentencing book thrown at them if ever up for sentencing again. July 30, 2013 in Data on sentencing, Detailed sentencing data, New crack statute and the FSA s impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered Permalink Comments 0 TrackBack

Friday, June 28, 2013

My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett

As regular readers likely recall, a little over a month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 6th Cir. May 17, 2013 available here, used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In my first post about the Blewett ruling, I noted that I was unsure that a Fifth Amendment equal protection theory provides a strong constitutional foundation for Blewett, but I also suggested, in the wake of the passage of the Fair Sentencing Act and the USSC s implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.  

A couple of weeks ago, as reported in this post, the Sixth Circuit responded to the Government s en banc petition with a letter to the parties express seeking additional briefing addressing whether the Blewetts punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment s Cruel and Unusual Punishments Clause.   Ever interested in sharing my perspectives in full glossy detail, I have spent the last few days finalizing an amicus brief on behalf of NACDL explaining my Eighth Amendment thinking and that brief was filed with the Sixth Circuit and with the consent of the parties this afternoon. For those following the Blewett case or interested in FSA retroactivity arguments, I recommend reading my 15-page filing in full and I have provided the full document for downloading below.   Here are a few passages that capture some of the themes to be found in the brief:

Through passage of the Fair Sentencing Act of 2010 FSA, Congress significantly reduced the sentences mandated and recommended for all crack offenses 1 by raising by over 500 the quantity of crack triggering five- and ten-year minimum sentences, and 2 by ordering the U.S. Sentencing Commission to reduce all crack guideline sentences through emergency amendments to be promulgated as soon as practicable.   See Sections 2 8 of FSA.  As the Supreme Court has explained, this landmark legislation reflected Congress formal response to the Commission and others in the law enforcement community strongly criticiz ing Congress decision to set crack sentences so high relative to powder cocaine sentences and Congress having specifically found in the Fair Sentencing Act that each pre-FSA crack sentence was unfairly long.   Dorsey v. United States, 132 S. Ct. 2321, 2328, 2333 2012.   In other words, passage of the FSA is a clear, bold and unmistakable legislative statement by our nation s representatives that pre-FSA crack sentences were unnecessarily severe, unfair and excessively long. While the text of the FSA provides the clearest objective evidence of the national consensus against the extreme pre-FSA crack sentencing provisions, federal practices, reflected in the work of other branches both before and after the FSA s passage, confirm that the now-repealed 100-1 crack/powder cocaine sentencing scheme has long been rejected by all significant federal sentencing decision-makers. It is not merely notable, but of great constitutional import, that virtually every federal criminal justice actor has in virtually every possible way acted in the last half-decade to demonstrate and vindicate the consensus view that pre-FSA crack sentences were excessively long.  Significantly, in recent Eighth Amendment cases such as Miller and Graham and Kennedy and Roper and Atkins, the Supreme Court found unconstitutional extreme sentences that were still being vigorously defended by the jurisdictions which imposed them.  Here, in sharp contrast, not only have the pre-FSA crack sentences imposed on the Blewetts been repealed by Congress, it is near impossible to find a single modern federal criminal justice decision-maker who will voice any substantive defense of the pre-FSA 100-1 crack sentencing structure. Download Blewett Amicus NACDL

Related posts on Blewett:

June 28, 2013 in Drug Offense Sentencing, New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered Permalink Comments 13 TrackBack

Friday, June 14, 2013

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 6th Cir. May 17, 2013 available here, used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a Fifth Amendment equal protection theory provides a strong constitutional foundation for Blewett, but I also suggested, in the wake of the passage of the Fair Sentencing Act and the USSC s implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.   In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago. I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett: 

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen 15 pages by June 28, 2013, addressing whether the Blewetts punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 1983 striking down imposition of sentence of life without parole for passing a worthless check because a criminal sentence must be proportionate to the crime for which the defendant has been convicted.   The Blewetts should also submit a brief of not more than thirty 30 pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above. Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government s en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers. Related posts on Blewett:

June 14, 2013 in Drug Offense Sentencing, New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences. Permalink Comments 5 TrackBack

Monday, June 03, 2013

As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling

As covered via a number posts on this blog, a split Sixth Circuit panel decided in Blewett, based on Equal Protection principles, that the new lower statutory mandatory-minimum thresholds for crack offenses established in the Fair Sentencing Act are applicable in motions to reduce otherwise-final sentences for incarcerated offenders.  The Blewett panel ruling was first discussed in this post, and further here and here.  

As predicted in these posts, the federal government is not happy with this ruling, and late Friday it finally filed a petition for rehearing en banc.  Here is the opening paragraph of the argument section from that filing, which can be downloaded below:

The majority s holding is legally incorrect, in conflict with prior Sixth Circuit decisions, in conflict with the law of every other circuit, and inconsistent with Dorsey.  Moreover, the effect of the decision will be widespread if it is allowed to stand.  The panel majority s core reasoning is seriously flawed in multiple respects, but two central errors highlight the need for en banc consideration.  Download Blewett_petition for rehearing

I would be truly shocked if the full Sixth Circuit did not grant this petition for rehearing.  Indeed, in my view the only real procedural questions now are 1 how long will it take the full Sixth Circuit to grant the petition, and 2 what kind of briefing and argument schedule will be set for this important case.  I would urge the Sixth Circuit to give plenty of time for briefing because I know that a number of public policy groups are likely to be eager to file amicus briefs in this matter.

As I briefly explained in my first post on Blewett, I think a Fifth Amendment equal protection theory used by the majority in the Blewett panel decision provides a very shaky constitutional foundation for giving the new crack statutory sentences of the FSA retroactive effect.  But I also think, in the wake of the passage of the Fair Sentencing Act and the USSC s implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could provide a more reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA. Related posts on Blewett:

June 3, 2013 in New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences. Permalink Comments 5 TrackBack

Thursday, May 30, 2013

Two weeks later, has there been any significant and noteworthy Blewett blowback. As first discussed in this post and further here and here, a split panel of the Sixth Circuit two weeks ago handed down a significant and questionable ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act s effective date.  This ruling means that still-imprisoned crack defendants sentenced in the two decades before the FSA can now seek a reduction in their mandatory minimum sentences under the FSA s new terms, at least if they were originally sentenced in the Sixth Circuit. Right after the ruling there was reasonable and justified speculation that the federal prosecutors would quickly move for the full Sixth Circuit to review and reverse the Blewett decision en banc.  Indeed, I expected that we a petition for rehearing en banc would be filed within a matter of days.  But here it is nearly two weeks later, and I am still awaiting any report of a DOJ en banc filing in response to Blewett.  I believe it is still likely that such a petition will be coming down the pike very soon, but the delay so far now has me wondering and speculating as to whether the feds might just decide to seek summary reversal of Blewett in the US Supreme Court rather than just fight this consequential fight in the Sixth Circuit. Meanwhile, though I predicted in this post that there could be hundreds, if not thousand, of Blewett claims brought by incarcerated federal crack offenders convicted within the Sixth Circuit, as of this writing I have not seen any reports or evidence of significant efforts by significant numbers of defendants to get some relief from Blewett.  I did find, thanks to Westlaw, a notable ruling by Judge Tarnow in the Eastern District of Michigan granting relief to a defendant based on Blewett in US v. Frost, No. 08–20537–4, 2013 WL 2250768 ED Mich May 22, 2013, noting that Cecil Frost only now can get resentenced because the Sixth Circuit Court s ruling in Blewett cures the unjust outcome that precluded his resentencing because he had been sentenced before the effective date of the FSA. It is hard to assess at this stage whether Frost represents the tip of a large Blewett-resentencing ice berg, or instead that Frost is a rare case involving a defendant and a district judge eager and able to operationalize Blewett quickly.  The question in the title of this post is an effort to seek help from practioners and others to figure out whether and how Blewett blowback might be brewing. Related posts on Blewett:

May 30, 2013 in Drug Offense Sentencing, New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences. Permalink Comments 10 TrackBack

Tuesday, May 28, 2013

DC Circuit allows suit against US Sentencing Commission for limiting crack relief to go forward

In an interesting and ground-breaking. Unanimous panel ruling that should make fans of Henry M. Hart and Herbert Wechsler smile, the DC Circuit today ruling that a crack defendant s civil rights lawsuit against the US Sentencing Commission could go forward. The notable ruling in Davis v. US Sentencing Commission, No. 11-5264 DC Cir. May 28, 2013 available here, gets started this way:

Appellant Brian Davis was sentenced to prison for crimes involving powder and crack cocaine before Congress and the Sentencing Commission took steps to reduce the disparity in sentencing ranges between the two.  Unfortunately for Davis, these efforts were directed at crimes involving lesser amounts of cocaine than his.  In a suit that seeks declaratory relief and possibly damages, Davis claims that these efforts violate the Equal Protection Clause because they do not reach his crimes.  This appeal does not take up the merits of Davis s claims, but their form.  The district court dismissed his suit on the ground that the only relief available to Davis is in habeas.  For the reasons set forth below, we reverse.

I nearly fell out of my desk chair when I read the last word of the last line of this opening paragraph, and the rest of the opinion surprised me as well.  In order to reach its conclusion, the DC Circuit panel 1 had to reverse an established circuit precedent based on intervening Supreme Court rulings and also 2 had to rule that the district court erred when concluding the claim made by Davis against the USSC was patently insubstantial.

In the end, because Davis v. USSC is a narrow procedural ruling, it still remains very unlikely Davis will ultimately prevail in his suit, and I also doubt that this ruling today by the DC Circuit will prove to be all that consequential.  Nevertheless, I think for Fed Court fans, as well as sentencing fans, the opinion in Davis v. USSC is today s must-read. May 28, 2013 in New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences. Permalink Comments 1 TrackBack

Sunday, May 19, 2013

How quickly can and will hundreds of imprisoned crack defendants file Blewett claims.

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant and questionable ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA s new terms, at least if they were originally sentenced in the Sixth Circuit. Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the Sixth Circuit land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal not state prisoners who 1 were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND 2 received a mandatory minimum sentence for a crack cocaine offense, AND 3 were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine. We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone. If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10 of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a Blewett claim in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could and I think should file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law. Related posts on Blewett:

May 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences. Permalink Comments 17 TrackBack

Saturday, May 18, 2013

Crackheaded Ruling by Sixth Circuit

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday s suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 6th Cir. May 17, 2013 opinion here; my commentary here.   Here are excerpts from Whelan s take:

I n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled in United States v. Blewett that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. And joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman. Under the panel majority s illogic, once it becomes known that a law has a constitutionally permissible racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition. As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an unbriefed and unargued issue to its multiple violations of circuit precedent. Let s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority s work in Blewett.  Here are the titles and links to the press releases coming from these groups:

from the ACLU here, Appeals Court Says Fair Sentencing Act Applies Retroactively

from the FAMM here, Don t Appeal Crack Fairness Ruling, FAMM Tells DOJ

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it. Related post:

May 18, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA s impact, New USSC crack guidelines and report, Scope of Imprisonment, Sentences Reconsidered, Who Sentences. Permalink Comments 14 TrackBack

Friday, May 17, 2013

On wrong. Constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

With thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 6th Cir. May 17, 2013 available here. The start of the majority opinion per Judge Merritt  will highlight for all federal sentencing fans why this ruling is a very big deal:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005.  The Fair Sentencing Act was passed in August 2010 to restore fairness to Federal cocaine sentencing laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress. In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 1954 Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination.   As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.   The Collapse of American Criminal Justice 184 2011.   He recommended that we redress that discrimination with the underused concept of equal protection of the laws. Id. At 297. In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.

The start of the dissent per Judge Gilman  will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat.  To start with, they readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime. Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect.  But I have long thought, in the wake of the passage of the Fair Sentencing Act and the USSC s implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA. If dare I say, when this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate perhaps via an amicus brief my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend. May 17, 2013 in New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered Permalink Comments 8 TrackBack

Tuesday, December 04, 2012

Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratio

The Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 7th Cir. Dec. 4, 2012 available here, in response to a defendant s claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel s discussion in Matthews:

On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. 3553 a 6 instructing district courts to consider whether a sentence results in unwarranted sentence disparities.

We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 2005, Kimbrough v. United States, 552 U.S. 85, 109 2007, and Spears v. United States, 555 U.S. 261 2009. Moreover, the judge s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge s policy disagreement with the guidelines is not unwarranted under 3553 a 6.

December 4, 2012 in Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, New crack statute and the FSA s impact, New USSC crack guidelines and report Permalink Comments 1 TrackBack

Tuesday, July 31, 2012

Eleventh Circuit clarifies which defendants can benefit from new crack guidelines

The Eleventh Circuit issued a little, but still important, sentencing opinion in US v. Liberse, No. 12-10243 11th Cir. July 30, 2012 available here to clarify just which defendants can now benefit from the new reduced crack guidelines. Here is how the opinion starts:

This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court s authority to reduce a defendant s sentence under 18 U.S.C. 3582 c 2.   In the first two decisions, we held that those amendments did not authorize a court to reduce a sentence under 3582 c 2 if the defendant s guidelines range remained the statutory mandatory minimum after the amendments or if the guidelines range was otherwise not affected by the amendments.  See United States v. Glover, F.3d , No. 12-10580, 2012 WL 2814303, at 3–4 11th Cir. July 11, 2012 statutory mandatory minimum ; United States v. Lawson, F.3d , No. 11-15912, 2012 WL 2866265, at 2–3 11th Cir. July 13, 2012 otherwise unchanged guidelines range.   Our decisions in Glover and Lawson establish that a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case. Glover, 2012 WL 2814303, at 3. This appeal raises a different issue because the pro se appellant s original guidelines range of 121 to 151 months was above, and thus not affected by, the applicable statutory mandatory minimum of 120 months.  As a result, Amendments 750 and 759 would reduce his guidelines range.  For those reasons, 3582 c 2 gives the district court authority to reduce the sentence in its discretion.  Because the court believed it lacked that authority, we vacate its order denying the motion for resentencing and remand for the court to determine whether to exercise its discretion to reduce the sentence.

July 31, 2012 in Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered Permalink Comments 2 TrackBack

Thursday, November 03, 2011

Changed crack sentencing rules leave a justice system in flux

The title of this post is the headline of this effective article in today s Minneapolis Star Tribune which provides an in-depth review of all the challenges posed by the implementation of the new reduced federal sentencing guidelines for crack.  Here are excerpts:

Carlos Lamont Cleveland, 39, was jailed in 1995 on charges that he was the right-hand man to the leader of a large and violent drug-trafficking organization that distributed crack cocaine in Minnesota. But his sister stood by him as he kept challenging his 300-month sentence. This week, she got the news from her brother she had been waiting for: Cleveland would be returning home on Friday. New sentencing rules that took effect on Tuesday made Cleveland one of more than 1,800 prisoners eligible for release right away, federal officials said. Creature comforts of a full-size bed, a freshly painted room and a bouquet of welcome-home balloons will await him in his hometown of Detroit. Nationwide, more than 500 people were released from custody on Tuesday, the Federal Bureau of Prisons said. In Minnesota, the change in the guidelines will mean an early release for 100 to 150 inmates who were convicted of crack cocaine crimes. The change is eventually expected to benefit 12,000 U.S. Inmates, reducing sentences by an average of three years. For the past few months, U.S. Probation officers, federal defenders and federal prosecutors in Minnesota have been combing through hundreds of court files in an effort to find inmates who may be eligible for release under the new retroactive sentencing rules. Hundreds of files fill a space in the federal public defender s office that they jokingly call the crack room, Roe said. At least two lawyers review each file. The last thing we want to do is miss somebody, she said. So far, they ve found 21 candidates for immediate release, Roe said. But the number is still in flux. The U.S. Attorney s office said it has identified 28 potential candidates for immediate release; the Probation Office said it might be somewhat fewer than that. So far, orders have been signed for just four that reduced their sentences to time served. In addition to Cleveland, who got a 29- month reduction, they include Paris Lamar Wilson, sentenced in 1997 on charges of conspiracy to distribute crack cocaine, possession and use of a firearm related to drug trafficking; Bobby Woods, sentenced in 2001 on charges of conspiracy and possession of cocaine base, and Steven Mitchell Gant, who pleaded guilty in 2008 to charges of conspiracy and possession of cocaine base, cocaine and ecstasy. The orders give the Bureau of Prisons 10 days to release the inmates. Jeanne Cooney, a spokeswoman for the U.S. Attorney s office in Minnesota, said under the law, the bureau gets time to notify victims in some cases or even local law enforcement. The offenders will remain subject to post- prison supervised release even if, in effect, they served excess time under the new guidelines. Some of the inmates affected by the changes have been imprisoned long after the time they would ve been released had the new rules been in place when they were originally sentenced, Roe said. Two are already under electronic monitoring in their homes. Others are in half-way houses because they were already transitioning back into society as they neared the end of their original sentence. Chief U.S. Probation Officer Kevin Lowry said some inmates who were released early after the first guidelines change experienced a little bit of culture shock at their sudden release. Some did indicate that they had anxiety about being back in the community sooner than they expected, he said. Kerns said probation officers worked hard then and are working hard now to connect the outgoing offenders with social services to ensure they have a place to stay, as well as educational and employment opportunities. That s what we ll continue to focus on, successful re-entry into the community and helping these folks turn back into successful, law abiding lifestyles, he said.

November 3, 2011 in New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences. Permalink Comments 1 TrackBack

Tuesday, November 01, 2011

Sentencing Guidelines for Crack Cocaine Offenses Are Now Officially Less Appalling

The title of this post comes from the fitting headline from this Reason entry, which summarizes today s major federal sentencing news with the fulsome and fitting.  dose of cynicism:

For all the disappointment or just low expectations confirmed about the Obama administration and the drug war, especially with the current crack-downs on medical marijuana, it s nice to remember the one damn thing Obama has done on this front in his three years: reduce the harsh sentencing disparity of crack cocaine offenses compared with powder. These guidelines, passed in June, are about to officially do some good for those already in jail -- hopefully. Reuters:

Up to 1,800 inmates are immediately eligible to go free and prison officials are processing a growing number of release orders, said Chris Burke, a spokesman for the U.S. Federal Bureau of Prisons. The pace has picked up in the last couple of weeks and we don t expect it to abate any time soon, he said. The U.S. Sentencing Commission estimated this summer that about 12,000 inmates could be eligible to seek a reduced sentence, with the impact spread over decades. The average reduction in sentence would be 37 months.

People suffering three fewer years behind bars certainly is a cause for celebration. And the reduction of sentencing minimums for crack -- which, for example, treated 5 grams of crack the same as 500 grams of cocaine -- is decades overdue. But don t get to optimistic about Obama.  Crack is still worth 18 times what powder cocaine is, for some reason. And none of these folks are out yet.  There s still many exciting bureaucratic hoops to jump through before Hamedah Hasan and others get their lives back.  The drug war continues, and the Obama White House isn t particularly interested in letting anyone s youthful experiments with substances -- besides the president s -- slide.

November 1, 2011 in Drug Offense Sentencing, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences. Permalink Comments 0 TrackBack

Tuesday, October 04, 2011

Eleventh Circuit now to review en banc FSA pipeline sentencing issue

Regular readers may recall this post and this post from this past summer discussing the important Eleventh Circuit panel ruling in US v. Rojas declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  Today, the Eleventh Circuit released this new order in Rojas indicating that this issue is now going to be examined by the full Eleventh Circuit en banc. I am disappointed but not all that surprised that the full Eleventh Circuit does not have better things to do than to re-review the application of the FSA s new, more fair mandatory minimum terms to a few more federal defendants.  After all, since the Rojas ruling, both the Attorney General as detailed here and the Third Circuit in Dixon discussed here have concluded that the Rojas panel got the law right.  

Moreover, and more importantly, the Rojas panel ruling does not require that district judges give lower sentences to the most aggravated crack offenses, rather it simply allows district judges to consider lower sentences for the most mitigated crack offenses.  But, apparently a majority of judges on the Eleventh Circuit are so fearful of even giving a few more federal defendants even the chance to argue at sentencing for the lower sentences that Congress has now deemed more fair that they have to turn this into a big en banc battle.   I wonder how much in federal tax dollars are going to be wasted on the federal criminal justice debate over this narrow issue of when exactly crack sentencing is supposed to become fair as Congress has commanded.  Yeesh.

Some prior posts on this FSA pipeline issue:

October 4, 2011 in Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Who Sentences. Permalink Comments 2 TrackBack

Tuesday, September 06, 2011

OSU book thief sentenced to probation and restitution

Because this new piece from the Columbus Dispatch, which has the same headline as this post, strikes very close to home, I am not going to comment on the substance of this notable story of crime and punishment.  But, especially because I am pretty sure I never met the now-sentenced former-OSU-law student, I am interested in reader reactions:

A former Ohio State University student avoided prison today but likely has forfeited his future as a lawyer for stealing books from the Moritz College of Law. In a deal that allowed him to escape jail time, Christopher B. Valdes, 24, formerly of the University District but now living with his mother in Florida, was placed on five years of probation and ordered to pay 34,619.88 in restitution for books he sold online.  As of this morning, Valdes has paid back 19,450. Valdes also agreed that he will not have or pursue employment or education in the field of law, according to the details of his guilty plea in Franklin County Common Pleas Court. Assistant Prosecutor John Litle said the ban on law school and practice is in place only for the five years of probation.  But Valdes would have to pass character and fitness requirements to become a lawyer.  As a practical matter it s unlikely that he can do that because of the felony conviction, Litle said. Valdes had been indicted on a fourth-degree felony count of theft that could have landed him in prison for up to 18 months.  He pleaded guilty in June to a lesser fifth-degree felony punishable by up to a year in prison. Valdes, who is no longer a student at Ohio State, was accused by campus police of stealing more than 200 books between November 2009 and last October after advertising them for sale online.  Officers learned of the thefts in August 2010, when the university received an e-mail from a Brazilian lawyer who had bought a volume online and found a crossed-out OSU ink stamp on its inside front cover, according to court documents. A check confirmed that the title had vanished from the shelves.  Valdes was arrested after police set up a sting involving a hidden camera and a marked book.

September 6, 2011 in Collateral consequences, Criminal Sentences Alternatives, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, White-collar sentencing Permalink Comments 2 TrackBack

Wednesday, August 24, 2011

Seventh Circuit judges explain their latest views on FSA pipeline cases

Regular readers know that district court and circuit courts have been struggling through and splitting on whether the new crack mandatory minimum sentencing provisions of the Fair Sentencing Act apply in cases involved offenses pre-dating the new law but not yet sentenced.  The Seventh Circuit was the first, and remains the only, circuit to rule expressly that the old harsher 100-1 mandatories still apply to these pipeline cases.  Today, though a set of opinions in US v. Holcomb, No. 11-1558 7th Cir. Aug. 24, 2011 available here, a number of Seventh Circuit judges explain at length their latest thinking on this issue in opinion that accompany an order refusing to reconsider this issue en banc. There is a lot of interest in these opinion for those like me who have been following this debate closely.  Here are a few snippets, first from the end of Judge Easterbrook s 16-page opinion:

If the President wants to apply the lower min imum and maximum penalt ies to all cases, pending and closed, he has only to issue a general commutation. The pardon power permits the President to achieve retroactive lenience if he is willing to pay the political price. By contrast, the judiciary must implement compromises faithfully, even when most judge s wi sh that the political decision had been different. I have therefore voted not to hear these appeals en banc.

Now from the second paragraph of Judge Williams 20-page opinion:

Our circuit should have heard this case en banc.  Three other circuits have ruled that judges no longer must impose unfair sentences after the Fair Sentencing Act.  This issue affects pending cases and many c ases to come in light of the five-year statute of limitations on drug prosecutions. There were equal votes to grant and deny rehearing en banc.  So our circuit s law stands, and it is wrong.

Some prior posts on this FSA pipeline issue: 

August 24, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report Permalink Comments 0 TrackBack

Friday, July 29, 2011

Crack cocaine: One woman s tale

The title of this post is the headline of this first-person account of the impact of the new crack federal sentencing guidelines appearing in the Chicago Tribune and forwarded to me by a helpful reader. This piece is authored by Stephanie Nodd, who is in prison in the Coleman Federal Correctional Institution in Florida, and here are excerpts:

Looking back, I know I did something wrong, but I am also sure that I did not need 30 years in prison to learn my lesson.  I am due a second chance, and I plan to make the best of it. In 1988, just after my 20th birthday, I met a man named John who promised me cash if I helped him set up his new business.  His business was selling crack cocaine. I helped him for a little over a month in return for money I used to pay bills and buy groceries.  After about six weeks, I cut off all ties with John and moved myself and my kids to Boston to start a new life. We were living in Boston when I was indicted on drug charges in Alabama.  I returned to take responsibility for my mistake.  I prayed I would not have to serve any time because of my clean record and limited involvement.  I could not have been more wrong. I could not give the prosecutors any information because I did not know anyone. Meanwhile, John cooperated against everyone, including me. I was eventually charged as a manager in the drug conspiracy and found guilty at trial.  Even though I did not have a criminal record, I was sentenced to 30 years in federal prison.  The year was 1990. George H.W. Bush was president, and no one knew what email was.  I was 23 years old. I have spent the last two decades behind bars.  Whenever new corrections officers ask me what my sentence is and I tell them 30 years, their first question is always the same: Who did you kill.

Earlier this year, the U.S. Sentencing Commission voted to reduce penalties for crack cocaine crimes.  On June 30, the commission voted to apply the new reforms to people serving the long prison sentences required by the old law.  Some people, including some members of Congress, are against retroactivity because they think it will give dangerous criminals a break.  As someone who has already served 21 years in federal prison for a first-time, nonviolent crack offense, I think it s important for the public to get a different perspective. The truth is that many people are serving sentences that are far longer than I believe is necessary.  I have met women whose husbands, after getting caught selling drugs, turned around and cooperated against their wives in exchange for shorter sentences.  Some of these women had little or no involvement in the drug offense for which they are serving decades in federal prison. I have tried to stay positive and make the best of a bad situation.  I received my GED, completed college courses and earned other licenses that will allow me to compete for a job when I am finally released.  Thanks to the U.S. Sentencing Commission s vote, I could be released by the end of this year.  I can finally see the light at the end of the tunnel. I know I am not the same woman who kissed her babies goodbye 21 years ago, but I can t wait to be reunited with my children and to meet my new grandchildren.

July 29, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report Permalink Comments 48 TrackBack

Wednesday, July 06, 2011

Eleventh Circuit panel re-issues updated opinion finding FSA lower crack mandatories apply all sentenced after FSA

Regular readers may recall this post a few weeks ago about the important Eleventh Circuit panel ruling in US v. Rojas late last month declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  Today, the Eleventh Circuit released a new version of the Rojas opinion, available here, which now starts this way:

We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v. Fisher, 635 F.3d 336, 340 7th Cir. 2011 ; United States v. Douglas, No. 10-2341, 2011 WL 2120163 1st Cir. May 31, 2011.

The issue in this appeal is whether the Fair Sentencing Act of 2010 FSA, Pub. L. No. 111-220, 124 Stat. 2372 2010, applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

Here is what appears to be a key new paragraph from the new Rojas opinion:

We do not disagree with our sister circuits in one major sense absent further legislative action directing otherwise, the general savings statute prevents a defendant who was sentenced prior to the enactment of the FSA from benefitting from retroactive application.  Further, we share in the well-reasoned view of the First Circuit that Congress intended for the FSA to apply immediately.  See Douglas, 2011 WL 2120163, at 4 It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums..

Some posts on this FSA pipeline issue:

July 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing Permalink Comments 0 TrackBack

Tuesday, July 05, 2011

Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website

I am very pleased to see and to report that the US Sentencing Commission s ever-improving website now has this special webpage titled Materials on Federal Cocaine Offenses.   This new special page provides especially effective and comprehensive coverage of the USSC s decision last week to make its new crack sentencing guideline retroactive.  This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful Reader-Friendly Version of Amendment on Retroactivity, which becomes effective November 1, 2011. I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics.  I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers. July 5, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report, Recommended reading Permalink Comments 2 TrackBack

Friday, July 01, 2011

US Sentencing Commission makes new crack guidelines retroactive

As detailed in this official press release, as expected the USSC voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010. Here is more from the Commmission s press release:

Retroactivity of the amendment will become effective on November 1, 2011 the same day that the proposed permanent amendment would take effect unless Congress acts to disapprove the amendment.

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction.  The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades.  The average sentence for these offenders, even after reduction, will remain about 10 years.  The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over 200 million within the first five years after retroactivity takes effect. The Commission s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive.  Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses.. A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission.  The ultimate determination will be made only after consideration of many factors, including the Commission s instruction to consider whether reducing an offender s sentence would pose a risk to public safety.

This New York Times report on the decision provides some notable quotes in reaction:

Calling the difference between crack and powder cultural, not chemical, Jim E. Lavine, the president of the National Association of Criminal Defense Lawyers, said that the old sentencing policy placed the heaviest penalties on minorities and the poor.  A civilized society doesn t mete out punishment based on a defendant s culture or skin color, Mr. Lavine said. A number of lawmakers had opposed retroactive sentence reductions, arguing that they would endanger communities. Representative Dan Lungren, Republican of California, said in an interview that he was very disappointed in the commission. Mr. Lungren said he supported the 2010 law in part because it was not retroactive.  That was not our intent, he said.

Some recent related posts:

July 1, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences. Permalink Comments 9 TrackBack

Thursday, June 30, 2011

US Sentencing Commission voting today on making new FSA crack guidelines retroactive

As previously noted here and as indicated in this official public notice, this afternoon at a public meeting, the US Sentencing Commission will vote on whether and how to make the new reduced crack offense federal sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010. As I have detailed in prior posts some of which are linked below, a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  Still, the smart money is on the Sentencing Commission voting to make the new crack guidelines retroactive with a few but not too many limitations on which previously sentencing defendants can get the benefit of the new lower guidelines. A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporter on the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

I will be on the road and likely off-line until very late tonight, but the folks at FAMM are all over this issue, as evidenced by this new item on FAMM s homepage:

Today. Historic Sentencing Commission vote on retroactivity

At 1 p.m., the U.S. Sentencing Commission will vote on retroactivity of the crack guidelines.  FAMM s Mary Price told the Associated Press, there is a tremendous amount of hope out there there is a potential that people could see their sentences reduced, some quite dramatically.  Learn more -- read FAMM s latest factsheet, Myths and Facts on Crack Guideline Retroactivity and other resources.  FAMM will also report live from the vote on Twitter.

June 30, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences. Permalink Comments 3 TrackBack

Friday, June 10, 2011

Washington Post editorial urges full retroactivity for new lower crack guidelines

The Washington Post has this new editorial headlined A step backward in crack cocaine sentencing, which criticized the Justice Department for advocating limits on which past offenders get the benefits of the new lower federal sentencing guidelines for crack.  Here are excerpts:

The U.S. Sentencing Commission has been tasked with developing sentencing guidelines for the new crack law and last week took up the issue of whether the reduced penalties may be applied retroactively.  The Justice Department endorsed retroactivity but argued that crack offenders who had been convicted of a gun charge and those with longer criminal histories should not be allowed to seek lower sentences.  While we appreciate the department s legitimate public safety concerns, we do not believe this approach is warranted. The most important reason to set aside the Justice Department s approach is fairness. The old crack laws were draconian and that is true whether they were applied to a first-time offender or to someone who also was found to be in possession of a weapon. Concerns over public safety can be and have been addressed through other means. The most serious criminals and those deemed violent career offenders are not among the 13,000 or so inmates eligible for a potential sentence reduction.  Moreover, no sentence could be reduced until a judge evaluates an inmate s record and signs off on the reduction.  The judge would have the authority to reduce only the penalties associated with the crack violations; penalties for other offenses, including gun infractions, would remain intact. Federal judges have a good record in making such judgment calls.  Judges rejected some 36 percent of requests for reduced sentences after the commission tweaked the crack guidelines in 2007 and permitted retroactive reductions.  The commission recently documented that those who were released after their sentences were shortened recorded recidivism rates that were slightly lower than typical.  Those with longer records or gun convictions were not automatically excluded from consideration, and they shouldn t be this time around, either.

Recent related posts:

June 10, 2011 in Federal Sentencing Guidelines, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences. Permalink Comments 5 TrackBack

Thursday, June 02, 2011

Informed criticisms of Justice Department s proposed limitation on crack retroactivity

I have received feedback from a a number of informed and thoughtful folks that there are real problems with the Justice Department s proposed limits on who should get the retroactive benefits of the new lower crack guidelines basics here.   Margaret Colgate Love gave me permission to reprint her comments on this score here:

The Justice Department s proposal to categorically disqualify from relief individuals with a criminal history score higher than 3, and anyone in a lower criminal history category whose sentence was enhanced for gun possession, would weed out upwards of 60 of those otherwise eligible for early release.  It would also reduce the projected savings by as much as 70, since those in higher criminal history categories would potentially qualify for a much larger reduction in their prison terms.  Many witnesses at the USSC hearing on June 1 -- as well as several Commissioners -- pointed out that criminal history category or gun bump is an imperfect proxy for dangerousness or likely recidivism.  For example, the Commission s new recidivism study of the 2007 crack releasees shows that CH 4 has a lower recidivism rate than CH 3.  Also, it can be pretty easy to get into a high criminal history category with very minor priors, and guns are frequently attributed to defendants who never touched much less fired them. The comparatively low recidivism rates of those released under the 2-level drop enacted in 2007 in every criminal history category indicates that the judges who made case-by-case decisions under that authority did a good job of weeding out individuals who were likely to be a danger upon release.  Almost everyone who testified at the USSC hearing thought judges could be relied upon to make these decisions again with the smaller cohort of individuals eligible for release under the new guidelines.  As if more were needed to discredit the Justice Department s recommendation, the Acting Director of BOP departed from his written testimony to remark on the management and public safety problems that might be created by disqualifying so many prisoners from a shot at early release when they have been working hard to earn it.

UPDATE:  Margaret Love also passed along for posting another informed observer s reflections on the USSC crack retroactivity hearing:

As you may have heard, Attorney General Holder was the first witness.  He stated that DOJ favors retroactivity with limitations.  DOJ would exclude those in Criminal History Categories IV, V and VI, and anyone with a weapon enhancement or a weapon conviction e.g., 924 c. This would be well over half of the 12,000 or so inmates that the Commission believes to be eligible.   After he left, the US Attorney for Northern Iowa elaborated on the Department s position in her testimony.  The Commissioners grilled her on how these limitations especially those based on criminal history could be so important to public safety for those already sentenced when the Department did not request them prospectively. Her answers did not seem to satisfy the Commissioners. She also was pressed hard on a broader recommendation to the Commission that it make retroactivity even more rare in the future given that judges can always vary to account for problems that the Commission later decides to fix.  This was not well received either, partly because the same logic should have led the Department to oppose retroactivity for the FSA amendments and partly because it would require the Commission to admit that it has become nearly irrelevant in the sentencing process. It is always hard to predict based on questions at a hearing, but I suspect that the Commission will rely on the favorable 2007 experience to make the current amendments retroactive without exclusions.  They also seemed to see a need to clarify the circumstances when it may not be appropriate to grant a reduction i.e., the language it now has about the general inappropriateness of a reduction if the original sentence was a downward variance under 3553 a.  The purpose there was to avoid a double dip in those cases where the judge already applied a ratio at least as favorable to the defendant as 18:1.  Because the person best situated to know whether that will be an issue is the sentencing judge, we asked the Commission to clarify the purpose so that judges can do their jobs.  I suspect that it will.

In addition, Michael O Hear has still more observations on the hearing at his Life Sentences blog here and FAMM s twitter feed has even more on the hearing. June 2, 2011 in New crack statute and the FSA s impact, New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences. Permalink Comments 14 TrackBack

Wednesday, June 01, 2011

Lamar Smith s deeply misguided statement about crack retroactivity debate

Via the Main Justice blog I came across a notable, and in my view deeply misguided, statement issued by House Judiciary Chairman Lamar Smith concerning today s US Sentencing Commission hearing about whether to make its new crack guidelines retroactive. Here is the statement:

The Sentencing Commission is poised to once again overstep its role and enforce laws not as enacted by Congress, but as the Sentencing Commission believes they should be enacted.  Congress did not create the Sentencing Commission to legislate or amend the laws passed by Congress.  But that is precisely what the Commission is considering with the Fair Sentencing Act of 2010.  Nothing in the Act nor in the congressional record implies that Congress ever intended that the new crack cocaine guidelines should be applied retroactively.  And yet, the Sentencing Commission may release thousands of crack traffickers before they have fully served their sentences.

I m also disappointed by the Obama administration s position supporting the release of dangerous drug offenders.  It shows that they are more concerned with wellbeing of criminals than with the safety of our communities.  This sends a dangerous message to criminals and would-be drug offenders that Congress doesn t take drug crimes seriously.

The members of the Sentencing Commission are unelected and therefore are not accountable to the American people.  Time and again, the Sentencing Commission has chosen to usurp the authority of Congress and impose its will on our communities.  It is time for Congress to restore accountability to our sentencing laws and ensure that the Sentencing Commission cannot continue to create law without Congressional approval.

There are so many troubling aspects of this statement with respect to the work of the US Sentencing Commission, I am not sure where to begin.  Most critically, everything that the US Sentencing Commission does is always subject to subsequent rejection by Congress, so the notion that the USSC does lots of stuff without at least tacit congressional approval is just wrong.  More specifically, there are in fact parts to the Fair Sentencing Act of 2010 and lots in the congressional record to suggest that Congress did expect and intend that the new crack cocaine guidelines could and should be applied retroactively by the USSC. 

As for the pot-shots at the Obama Administration, this rhetoric is even worse and even more irresponsible.  As reported here, the Obama Administration s position on crack retroactivity is expressly that dangerous drug offenders should not get the benefit of the new lower crack guidelines.  Moreover, to assert that Justice Department is more concerned with wellbeing of criminals than with the safety of our communities itself sends a dangerous message that the House Judiciary Chair doesn t take seriously the challenge of responsible public policy decision-making and instead has a greater interest in sound-bite demagoguery. Recent related posts:

June 1, 2011 in Drug Offense Sentencing, New crack statute and the FSA s impact, New USSC crack guidelines and report, Sentences Reconsidered, Who Sentences. Permalink Comments 7 TrackBack

Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive

June kicks off with big US Sentencing Commission doings:  the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive.  A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive. Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for partial retroactivity of the new reduced crack guidelines:

Holder described the Obama administration s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive.  Applying the measure to those previously sentenced could affect about 12,000 inmates.

We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law, Holder said.  Retroactive reductions in sentences shouldn t apply to those who possessed or used weapons in committing their crimes or offenders with significant criminal histories, Holder said.

The full text of AG Holder s written testimony and of many others testifying today before the USSC are linked from this page.  Here is a key passage from AG Holder s testimony:

The Commission s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees.  In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy. The Administration s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set.  However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.

This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me though the devil can and will often be in the details.   I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here. A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 1, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences. Permalink Comments 1 TrackBack

Tuesday, May 31, 2011

First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases

I am quite pleased and a bit surprised to be able to report this afternoon that a panel of the First Circuit today has unanimously affirmed US District Judge D. Brock Hornby important ruling in US v. Douglas, No. 09-202-P-H D. Maine Oct. 27, 2010 opinion here; blogged here, which had concluded that a defendant guilty of committing a crack offense back in 2009 but not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act s altered mandatory minimums apply to such a defendant as well.   Here are a few notable passages from today s big circuit ruling in US v. Douglas, No. 10-234 1st Cir. May 31, 2011 available here : 

None of the Supreme Court cases squarely governs this case.  Two of those cases invoked by Douglas, United States v. Chambers, 291 U.S. 217 1934, and Hamm v. City of Rock Hill, 379 U.S. 306 1964, overrode section 109 in problematic situations.  While the analytical explanation given in each case has little bearing on this one, the cases do suggest that some sense of the fair result, arguably helpful to Douglas in light of the reformist purpose of the FSA, sometimes plays a role in applying section 109. See Goncalves, 2011 WL 1631649, at 6-7. Perhaps closer to this case from a factual standpoint is Marrero relied on by the government ; it held that Congress creation of parole eligibility for serious drug offenders, overturning a prior statutory bar, would not apply retroactively to those serving sentences for crimes committed prior to the new statute.  Marrero, 417 U.S. At 663-64. Still, the conflict between an 18:1 guidelines sentence and a 100:1 mandatory minimum may seem to some more pronounced than making the availability of parole depend on whether the prisoner committed the crime before or after an amendment allowed parole. Further, the imposition now of a minimum sentence that Congress has already condemned as too harsh makes this an unusual case.  It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences. Finally, while the rule of lenity does not apply where the statute is clear, e.g., Boyle v. United States, 129 S. Ct. 2237, 2246 2009, section 109 is less than clear in many of its interactions with other statutes, and that is arguably true in the present case as well.  Our principal concern here is with the fair or necessary implication, Marrero, 417 U.S. At 659 n.10; Great N. Ny. Co., 208 U.S. At 465, derived from the mismatch between the old mandatory minimums and the new guidelines and to be drawn from the congressional purpose to ameliorate the cocaine base sentences.  But the rule of lenity, applicable to penalties as well as the definition of crimes, adds a measure of further support to Douglas.

In addition to being very big news for many crack defendants in the First Circuit, this new Douglas ruling creates a crisp circuit split because the Seventh Circuit has come to a different view on this issue and has already rejected en banc review of its ruling that the new lower FSA minimums do not apply to not-yet-sentenced defendants.  Consequently, the oft-needed circuit split to foster SCOTUS review is now in place and I would not be too surprised if the SG s office seeks cert from this Douglas ruling in light of the Seventh Circuit s contrary opinion.

Some posts on this FSA issue:

May 31, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA s impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Who Sentences. Permalink Comments 1 TrackBack

Saturday, May 21, 2011

Revised data from USSC concerning potential impact of FSA guideline retroactivity

The US Sentencing Comission now has posted here

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