A judicial pitch for making crack reductions retroactive
Sentencing Hall of Famer Judge Lynn Adelman has kindly allowed me to post the letter he recently sent to the US Sentencing Commission urging the USSC to make its new crack guidelines retroactive. Here are excertps:
The Sentencing Commission recently took the estimable step of proposing guideline amendments to reduce the sentencing ranges for cases involving crack cocaine. The Commission also produced another detailed report on cocaine and federal sentencing policy, reiterating its consistent position that the 100:1 disparity between crack and powder cocaine is unjustified and undermines the objectives of the Sentencing Reform Act. The amendments will, as you know, go into effect on November 1, 2007, absent congressional disapproval.
The Commission has not yet decided whether to make those amendments retroactive pursuant to U.S.S.G. § 1B1.10. As you know, under 18 U.S.C. § 3582(c), district courts are authorized to reduce previously imposed terms of imprisonment that were based on a sentencing range subsequently lowered by the Commission, but only if the Commission specifically designates the amendment for retroactive application. I urge the Commission to list the crack cocaine amendment as one of those retroactively applicable under § 1B1.10(c)….
It may be argued that allowing retroactive application of the crack amendment will open the district courts to a flood of § 3582(c) motions. Such concerns are overstated. Motions under § 3582(c) may be resolved without a hearing, and without the presence of the defendant. See Fed. R. Crim. P. 43(b)(4). Further, since the court will have already determined drug weight, no additional fact-finding will be required. Finally, even if the Commission does not make the crack amendment retroactive, it seems likely that many prisoners sentenced under the old guidelines will nevertheless seek relief via motions under 28 U.S.C. §§ 2255 or 2241, or papers bearing other, more creative labeling. Even if retroactive application does create more work for the courts, it seems well worth it to achieve fairer, more proportionate sentences, which actually promote respect for the law.