Commission’s decision allows federal crack cases to be revisited

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A recent vote by the U.S. Sentencing Commission to allow people convicted of federal crack cocaine crimes to potentially seek sentence reductions will not take effect until March 3, 2008, but the local legal system is already preparing for the fallout.

“There isn’t going to be an immediate impact, but I would expect we’re going to get a lot of motions filed for review of cases,” said Michelle L. Jacobs, First Assistant U.S. Attorney for the Eastern District of Wisconsin.

According to the commission, more than 250 prisoners prosecuted in Wisconsin could be eligible for shorter prison terms under the new guidelines, which also allow for more judicial discretion in sentencing in future crack cases.

On Dec. 11, the commission expanded on an earlier determination that the sentencing guidelines for future crack cocaine crimes should be more proportionate to those involving powder cocaine. The change is retroactive back to 1995.

However, the 1986 mandatory minimum penalties associated with each remain unchanged.

The 100-to-1 ratio for cocaine cases holds, meaning distribution of 5 grams of crack cocaine carries the same mandatory minimum five-year sentence as distribution of 500 grams of powder cocaine.

Eligibility of Imprisoned

The Sentencing Commission report revealed 134 inmates sentenced in the Eastern District and 125 in the Western District who could potentially qualify for review, but those numbers may shrink.

The commission, along with the Office of Probation/Pretrial Services and the Administrative Office of the Courts will begin evaluating cases in the coming months, according to Jon W. Sanfilippo, Clerk of Court for the Eastern District of Wisconsin.

“The joint effort is to give the court a list of cases which could be potentially affected and give judges and staff a head start,” said Sanfilippo, who did not expect any motions for review to arrive until closer to March 3.

Nancy Joseph said the three state branches of the Federal Defender Services of Wisconsin, Inc., are also in the process of reviewing inmate eligibility.

She expected the number of cases her agency will handle could be substantial, since drug cases are the “bread and butter” of the organization.

The commission indicated that cases dating back to 1995 will be evaluated, and Joseph said she expects the Federal Defender will handle all of its original crack cocaine cases that qualify, as well as additional cases.

“Right now what we have are just numbers and we don’t know names,” said Joseph, who has been with the Wisconsin Federal Defender since it began in 2000. “We need to pull files, judgment of convictions and pre-sentence reports and do calculations, to see if people qualify.”

Strain on the System

Once potential cases for review are identified, Jacobs anticipates inmates could be brought back to the district for re-sentencing. The process could create a significant burden on the system.

She estimated that the Eastern District handles around 400 cases annually and a sudden influx of old cases would create additional work for staff.

“It’s not like it’s a whole new case, but there could still be a lot of defendants to come through the district again,” said Jacobs. “Anything over 100 will cause some added work, but the change affords those people the right to come back.”

The U.S. Department of Justice (DOJ) issued a letter in November stating its opposition to a retroactive rule on the grounds that it would “consume significant resources due to a substantial amount of litigation and years would pass before final appellate rulings can be obtained.”

The DOJ estimated that the crack amendment would require new sentences in approximately 25 percent (20,000) of all federal sentences imposed nationally in 2006 – roughly the same number as all crack sentences handed out from 2003 – 2006 combined.

Jacobs specifically noted the additional burden on the U.S. Marshal Service, which will be responsible for transporting inmates back to district courts, as needed. In-person appearances may not be required in all cases, as judges could issue sentencing orders from the bench.

“It’s not as if those people are all sitting in Wisconsin prisons,” said Jacobs. “They are all over the country.”

Joseph also expected an increased workload for the Federal Defender. She said that, depending on the release dates of inmates, some cases might be farmed out to private attorneys.

“Nobody likes extra homework, but I think in this case, it’s the right thing to do,” said Joseph.

Since sentencing guidelines are not mandatory, judges will have flexibility in re-evaluating cases. An individual judge’s timetable for scheduling a re-sentencing or issuing an order could also affect the review process.

“I think it may well be different judge by judge and that’s not a bad thing, by itself,” said defense attorney Dean A. Strang, who surmised that there may be more sentence reductions in Wisconsin’s Eastern District than in the Western District.

“I think it’s based more on the make-up of the bench and the judicial philosophy in each district, because the mix of cases isn’t all that different between the two,” said Strang of Hurley, Burish & Stanton, S.C.

Future Sentencing

Despite the additional workload, judges will still have to adhere to the unchanged mandatory minimums for crack and powder cocaine crimes.

Because of that fact, Jacobs did not view the reduced guidelines for crack cocaine as a “watershed change” in the way federal drug cases will be prosecuted.

“Those sort of benchmarks (mandatory minimums) are what has been driving these prosecutions anyway,” said Jacobs, who added that case law will develop quickly after cases begin to return to district courts for re-sentencing.

Strang said the changes are significant in that judges receptive to the less stringent penalties for crack crimes can impose sentences closer to those associated with powder crimes.

“For judges who are willing to look afresh at how we treat the crack cocaine dealer on the left and the powder dealer on the right, we may see sentences closer to parity,” said Strang. “Even judges who adhere rigidly to advisory guidelines may begin imposing less disparate sentences in crack cases.”

Strang cited a pair of recent Supreme Court rulings in drug cases (Gall v. U.S. and Kimbrough v. U.S.) as a further indication that judges are regaining control in sentencing discretion.

In both cases, district courts applied sentences lower than the recommended guidelines.

Reversed in both cases by the Court of Appeals, the Supreme Court restored the original sentence recommendations on the grounds that both were reasonable given the circumstances of each case.

“The confluence of those rulings
and the commission’s decision brings closer the promise of Booker (U.S. v. Booker) in that judges would again have a principal role in exercising sentence discretion.”