Nothing is cut and dry

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Since the retroactive sentencing guidelines for federal crack cocaine crimes took effect on March 3, review and subsequent release of prisoners has gone relatively smoothly, according to officials from the U.S. District Courts in Wisconsin.

But the process is expected to become more complicated as motions filed by inmates with future release dates are reviewed.

Specifically, the debate as to whether or not the 2005 U.S. Supreme Court case U.S. v. Booker will be applicable in contested cases.

Assistant U.S. Attorney for the Eastern District, John J. Manning, said he does not think Booker should apply because the case dealt with a very narrow constitutional issue where a judge can increase the maximum incarceration of a defendant.

“Booker itself dealt with an issue that is not at all relevant here,” said Manning, during a panel discussion at the Eastern District of Wisconsin Bar Association’s annual meeting on April 17.

“The sentencing issue here deals with lowering the sentence no more than two levels and there is no possibility of increasing the maximum,” continued Manning.

In Booker, the Supreme Court ruled that sentencing guidelines, where they allow judges to enhance sentences using facts not reviewed by juries, violated the Sixth Amendment right to trial by jury.

Advisory Guidelines

But in a separate ruling, the Supreme Court said that the guidelines would now be advisory and invalidated the provisions that made them mandatory.

Nancy Joseph, of the Federal Defender Services of Wisconsin, agreed that Booker’s applicability is unknown at this point, but as contested cases come back to court she hopes judges will look at cases individually.

She said in crack cocaine cases, which warrant full resentencing and redetermination of factors in the case, judges could have the opportunity to reduce sentences lower than the Sentencing Commission’s retroactivity guidelines.

“Not only do you need to recalculate the defendant’s offense level and whether it will be two times lower, but we’re now post-Booker and you can actually go lower,” said Joseph during the panel discussion.

Manning argued that if the guidelines are advisory, “then the fact of retroactivity is completely advisory, and the judge doesn’t even have to consider it.”

Early Releases

Thus far, Joseph and other federal public defenders have dealt with immediate releases or people who, under the new statute, should have been released as much as one or two years ago.

“So, for those clients, there’s no time for litigation and they should have been out one year ago or two years ago,” said Joseph. “The parties are not contesting those cases.”

Terri L. Full, of the U.S. Probation Office, said between 150 and 175 inmates sentenced in the Eastern District could be eligible for release. So far, 76 motions have been filed and 16 releases have been granted.

District Court Judge Lynn S. Adelman said he has reviewed 20 motions under the statute and granted 6. All were jointly stipulated by the U.S. Attorney’s Office the Federal Public Defender.

Approximately 115 defendants are eligible in the Western District, according to Clerk of Court Theresa Owens, and 45 have been stipulated by the Federal Defender’s Office. Of those 45 reviewed by District Court Judge Barbara B. Crabb, 17 were granted time already served judgments under the new guidelines and the remainder were granted sentence reductions.

“At this point, the stipulated motions have gone through, meaning those that were agreed upon by the U.S. Attorney and the Federal Defender,” said Owens.

Manning admitted that someone with 24 years left on a sentence may want to seek a full resentencing, but that the process is a “double-edged sword.”

If an inmate engaged in criminal behavior such as sexual assault or beat another prisoner, the U.S. Attorney’s Office will make a note of it during the resentencing.

“That kind of conduct could result on someone’s sentence being ratcheted up,” said Manning.