Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases

November 18, 2010

I am very pleased to have learned this morning of a potent two-page letter, dated November 17, 2010, signed by Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder, which urges the Justice Department to “apply [the Fair Sentencing Act’s] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment.” Here is most of the text from the letter (which can be downloaded below):

The preamble of the Fair Sentencing Act states that its purpose is to “restore fairness to Federal cocaine sentencing.” While the Fair Sentencing Act did not completely eliminate the sentencing disparity between crack and powder cocaine, as the Justice Department had advocated, it did significantly reduce the disparity. We believe this will decrease racial disparities and help restore confidence in the criminal justice system, especially in minority communities.

Our goal in passing the Fair Sentencing Act was to restore fairness to Federal cocaine sentencing as soon as possible. As Senator Durbin said when the Fair Sentencing Act passed the Senate: “We have talked about the need to address the crack-powder disparity for too long. Every day that passes without taking action to solve this problem is another day that people are being sentenced under a law that virtually everyone agrees is unjust.” You expressed a similar sentiment in testimony before the Senate Judiciary Committee, when you urged Congress to eliminate the crack-powder disparity: “The stakes are simply too high to let reform in this area wait any longer.”

This sense of urgency is why we required the U.S. Sentencing Commission to promulgate an emergency amendment to the Sentencing Guidelines. The revised Guidelines took effect on November 1,2010, and will apply to all defendants who have not yet been sentenced.

And this sense of urgency is why the Fair Sentencing Act’s reduced crack penalties should apply to defendants whose conduct predates enactment of the legislation but who have not yet been sentenced. Otherwise, defendants will continue to be sentenced under a law that Congress has determined is unfair for the next five years, until the statute of limitations runs on conduct prior to the enactment of the Fair Sentencing Act. This absurd result is obviously inconsistent with the purpose of the Fair Sentencing Act.

As you know, Judge D. Brock Hornby, an appointee of President George H.W. Bush, recently held that the Fair Sentencing Act’s reduced mandatory minimums apply to defendants who have not yet been sentenced. In his opinion, Judge Hornby wrote, “what possible reason could there be to want judges to continue to impose new sentences that are not ‘fair’ over the next five years while the statute of limitations runs? … I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.” We wholeheartedly agree with Judge Hornby.

We were therefore disturbed to learn that the Justice Department apparently has taken the position that the Fair Sentencing Act should not apply to defendants who have not yet been sentenced if their conduct took place prior to the legislation’s enactment. In his opinion, Judge Hornby states that the Assistant U.S. Attorney in the case said he understood this to be the position of the Department of Justice.

Regardless of the legal merits of this position, the Justice Department has the authority and responsibility to seek sentences consistent with the Fair Sentencing Act as a matter of prosecutorial discretion. This is consistent with your view that reforming the sentencing disparity “cannot wait any longer.” It is also consistent with the Justice Department’s mission statement, which states that the Department should “seek just punishment for those guilty of unlawful behavior” and “ensure fair and impartial administration of justice for all Americans.”… In this instance, justice requires that defendants not be sentenced for the next five years under a law that Congress has determined is unfair.

Therefore, we urge you to issue guidance to federal prosecutors instructing them to seek sentences consistent with the Fair Sentencing Act’s reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place. Additionally, please provide us with any guidance that you have already issued to federal prosecutors regarding implementation of the Fair Sentencing Act.

Download Fair Sentencing Act AG Holder letter 111710

Regular readers may recall this post of mine from a few weeks ago in which I wondered “Why is Obama’s DOJ, after urging Congress to ‘completely eliminate’ any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?”. I am extraordinarily pleased to discover that two US Senators who played a leading role in the FSA’s enactment are wondering the same thing.

I hope and certainly expect that this important and potent letter generates more of an official response from the Justice Department than did by blog post. More importantly, I hope (though I am not sure if we can expect) that this important and potent letter greatly increases the likelihood that many not-yet-sentenced defendants will be subject to the FSA’s new sentencing provisions.

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