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National Summits Help Federal Courts Prepare for Sentence Reduction Requests
More than 600 district court judges, federal defenders, prosecutors, and
probation officers gathered last month for two-day summits in
Charlotte, North Carolina, and St. Louis, Missouri, to help each other
prepare for a sudden increase in their workloads.
As of March 3, 2008, more than 21,000 inmates serving time for federal
crimes involving crack cocaine will be eligible to have their sentences
reduced. Federal courts already are preparing to rule on requests from
inmates, some imprisoned since 1992.
After amending the Federal Sentencing Guidelines to reduce penalties for
crack cocaine offenders sentenced on or after November 1, 2007, the
U.S. Sentencing Commission (USSC) voted a month later to make the
The USSC, an independent agency within the federal Judiciary, amended
the Guidelines to lower the base offense level for crack cocaine by two
levels. For example, the penalty for a first-time offender found with 10
grams of crack would be reduced by two levels, from a range of 63—78
months in prison to a range of 51—63 months.
The USSC initially estimated that 19,500 prison inmates might be
affected, but its estimate has increased to nearly 21,000 to account for
offenders sentenced after July 31, 2007, when the initial analysis was
conducted. Many court officials believe the number of affected inmates
may be far greater and that many inmates not eligible for a reduction
will file requests anyway.
The meetings were conceived and hosted by Chief Probation Officers Greg
Forest of the Western District of North Carolina and Doug Burris of the
Eastern District of Missouri.
Since Congress established a 100-to-1 ratio of penalties between crack
and powder cocaine in the Anti-Drug Abuse Act of 1986, controversy has
swirled around the discrepancy. The amendment's retroactivity had been
supported by the Judicial Conference's Criminal Law Committee as a
modest step toward fairness.
"The Committee believes that the burden to the courts and probation
offices associated with resentencings is not a sufficiently
countervailing consideration... The Judicial Conference has previously
expressed its view that the disparity between penalties for powder
cocaine and crack cocaine is not supportable and harms public confidence
in the federal Judiciary," stated a November 2, 2007, letter from the
Criminal Law Committee to Judge Ricardo Hinojosa (S.D. Tex.), who chairs
the U.S. Sentencing Commission.
Several common themes for dealing with the reduction requests dominated the two meetings:
- Teamwork among probation, federal defender, and U.S. attorney
offices as well as the Federal Bureau of Prisons and court clerk staffs
will be essential.
- It is also essential that each of the 94 judicial districts have a
procedural plan in place before the retroactivity amendment's March 3
- Any such plan should facilitate a three-step determination: whether
a defendant is eligible for a reduction; the extent of reduction
allowed; and other factors, such as public safety, that may influence
reduction and release decisions.
- Reductions are not automatic. Determinations must be made by a judge on a case-by-case basis.
- It is generally agreed that the overwhelming majority of cases will
not require court hearings and will be resolved on written filings.
- Priority should be given to resolving requests concerning inmates
who, if successful, would be eligible for immediate release.
(Consideration of a sentence reduction can result from a request from a
defendant or the director of the Bureau of Prisons, or by a judge's
- It is, and will remain, a fluid process. Some issues may not be resolved until they are fully litigated.
One issue to be resolved, most likely on a district-by-district or
even judge-by-judge basis, is whether all defendants who seek reduced
sentences should be represented by court-appointed counsel.
Federal public defenders believe each inmate deemed eligible for a
reduction should have legal representation. "It may well be that 90
percent of the cases will result in agreements if defendants are
represented by counsel," said Amy Baron-Evans, who is the National
Sentencing Resource Counsel to the Federal Public and Community
Defenders. "This is about basic fairness."
Judge John Gleeson (E.D. N.Y.), chair of the Judicial Conference
Committee on Defender Services, voiced his agreement and described the
genesis of the sentencing structure now subject to modification. The
Sentencing Commission did not use pre-Guidelines average sentences in
fashioning the sentencing grid but rather prescribed much higher
sentences so they would coincide with the mandatory minimum sentences
enacted in 1986.
Gleeson quoted the USSC's 15-year report, issued in November 2004,
which described the impact of linking the Guidelines ranges to the
mandatory minimums: "[N]o other decision of the commission has had such a
profound impact on the federal prison population . . . (and) had the
effect of increasing prison terms far above what had been typical in
Gleeson concluded, "These are grossly unfair sentences, especially for
non-violent crack offenders, and the retroactivity amendment is only a
small step toward addressing the unfairness. This is a class of
offenders who got a raw deal . . . The question ought to be, 'Why
shouldn't they get a lawyer?'"
He agreed, however, with another judge's suggestion that having federal
public defenders help review all defendants' requests early in the
process might negate the need for individualized counsel.
Some judges questioned the need for counsel in every case, especially
those in which a sentence reduction is inapplicable. "Our court thinks
we need to have more discussion about that," said Judge Lance Africk
Another significant issue, one which may not be resolved without
litigation, is whether the Supreme Court's 2005 decision in United
States v. Booker, in which the Justices rendered the Sentencing
Guidelines advisory, applies to a defendant's sentence-reduction
request. If so, a judge might not have to limit relief to a two-level
For its part, the Sentencing Commission view is that an inmate's
sentence-reduction request does not trigger a full resentencing, and
that under the relevant statute and policy statement the court is
limited to the two-level reduction as provided in the amended Guideline.
Some district courts, like the Middle District of Florida, used the
January summits to polish tentative plans. Chief Judge Patricia Fawsett
said she had met with the district's probation office, public defender's
office, and the U.S. attorney's office to map out a tentative protocol
for dealing with what may be more than 1,300 cases for 15 judges.
"We are dividing defendants into two basic groups. The first group is
those who might be eligible for release in 2008, 2009, or 2010, and the
second group is the rest," she said. "We need to get the first group of
defendants to the front of the line. The second group of defendants will
be handled as motions are filed by the defendants, and we are
recommending that judges use the same basic procedure for their
requests," Fawsett said.
Chief Judge Irene Keeley (N.D. W.Va.) presides over, in her words, "a
small district that will face an awful lot of cases" due to the
retroactivity amendment—perhaps as many as 800 for two active judges and
two senior judges. A court task force already has drafted a plan for
"how we're going to deal with this," she said.
Various court officials at the Charlotte and St. Louis meetings voiced
concerns about releasing some inmates into the general population before
they spend some time in halfway houses and the possibility of inmates
being freed without fully developed release plans.
"What's needed in each case is viable employment and a housing plan,"
said Jeff Givens, chief probation officer in the Northern District of
West Virginia. "This is going to fall to probation officers."
Steve Whisenant, chief probation officer for the Eastern District of
Virginia, noted that "a lot of people could be coming out quickly" in
his district, and suggested that a district's Defendant/Offender
Workforce Development plan might be used to help those released on, or
soon after, March 3.
Although 37 percent of all federal inmates are non-citizens, a much
smaller percentage of crack offenders—5.5 percent—are non-citizens, who
on release from prison will be handed over to immigration officials for
The anticipated volume of requests presents logistical issues for those
responsible for providing judges with what they need to make their
decisions. A key source of information is the Bureau of Prisons (BOP).
"It looks like we're all going to learn a lot about the BOP in the next
few months," Judge Julie Carnes (N.D. Ga.) told court officials. Carnes
is the new chair of the Judicial Conference Committee on Criminal Law.
Jerry Vroegh, an administrator in the BOP's Correctional Programs
Division, explained to court officials that probation officers may
access any inmate's central file—containing a presentence report and
judgment and commitment order—at the inmate's local institution. BOP
case managers can be called on for help, Vroegh added.
He suggested that requests to BOP be communicated via the web-based
E-designate system, and that his agency will seek a 10-day delay in the
release of any inmate so, among other things, DNA samples can be
collected, victims and law enforcement officials notified, and release
Court officials discussed the possibility of judges issuing release
orders at least 10 days before their effective date as perhaps one way
to avoid litigation over the proposed 10-day delay.
The BOP also is the best source for information on an inmate's conduct
while incarcerated, a possible factor in sentence-reduction and release
decisions. And for those cases in which a judge wants a hearing and
wants the defendant to participate, most BOP facilities have
video-conferencing capabilities that would allow such participation
without the cost and disruption of travel. (The nation's 4,000 deputy
U.S. marshals and other law enforcement officers took federal inmates to
court appearances 770,000 times in the past year.)
Several court officials discussed in terms of "triage" the need to
prioritize processing requests for sentence reduction in light of the
anticipated volume, but neither summit featured any hint of panic.
"The sky is not falling. This is do-able. It can be done efficiently and
fairly," said Criminal Division Chief Linda Hoffa of the U.S.
Attorney's Office in Philadelphia.
Hinojosa sounded a similar theme, stating, "There's probably no one who
can better handle quick changes in the law than the U.S. district