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February 2008

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This article is in the news archives --- for current news go to the Third Branch News.


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 amendment retroactive.

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 effective date.
  • 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 order.)
  • 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 past practice."

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 (E.D. La.)

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 reduction.

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 deportation.

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 paperwork completed.

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 courts."