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May 2008

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


Crack Cocaine: Resentencing Goes Smoothly

Federal district courts generally are coping well with the sudden increase in their workloads that occurred March 3, when a retroactive reduction in penalties for crack cocaine offenders took effect and more than 21,000 inmates became eligible for shorter prison sentences.

Three weeks after the Sentencing Guidelines amendment took effect, the sentences of more than 3,000 inmates nationwide had been reduced. More than 1,000 inmates had been ordered released immediately.

Court officials—including judges, chief probation officers, clerks of court, and federal defenders—had prepared, along with federal prosecutors, by drafting operational plans and conducting retroactivity summits in Charlotte, N.C., and St. Louis well before the March 3 date.

“The process our court developed—the team effort we had in place—has made things go pretty flawlessly,” Chief Probation Officer Doug Burris (E.D. Mo.) said. As of the end of April, 170 inmates had received reduced sentences in that judicial district, with about 44 released.

The U.S. Sentencing Commission reported that 3,647 reduction requests had been fielded by the 94 district courts as of April 14, with 3,075 granted and 572 denied.

There were 21 requests denied in the Eastern District of Missouri. “We’ve had some bank robbers and white-collar criminals try to benefit by seeking reductions under the retroactive guidelines, even though their cases had nothing to do with crack cocaine,” Burris said.

Nationwide, requests were denied for various reasons, such as requesters being career criminals or having bad-conduct records in prison. The Sentencing Commission intends to update its crack cocaine retroactivity statistics periodically, at its website www.ussc.gov.

Its update for the period ending April 14 showed that judges in the Fourth Circuit Court of Appeals—encompassing courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia—had processed the most cases, 837.

In the Northern District of West Virginia, described in January by former Chief Judge Irene Keeley as “a small district with an awful lot of cases,” Pro Se Law Clerk Laura Austin served as coordinator for the taskforce created after the Sentencing Commission’s decision on retroactivity.

“We identified 622 cases,” Austin said in a late April interview. “Our first priority was those inmates who, if they got a two-level reduction, would be eligible for immediate release. Because the Bureau of Prisons had requested 10 days to process court orders, our first orders were issued two weeks to 10 days before March 3, so the inmates could be released on March 3.”

The district’s four judges handled 76 cases involving release from prison on March 3.

“Another priority was inmates who would be eligible for release sometime in 2008; then those eligible in 2009, assuming a two-level reduction. Those cases, which total 166, have now been processed,” Austin said.

Controversy has arisen in some courts over some inmates who request sentence reductions not being appointed lawyers to help them.

“The Defender Services Committee strongly encourages judges to appoint counsel whenever there is a contested issue of law or fact on these applications,” said Judge John Gleeson (E.D. N.Y.), the Committee chair. He said counsel should be appointed where there is a reasonable dispute about eligibility for the reduction.

“It’s not a matter of whether there’s a Sixth Amendment right to counsel in this setting,” Gleeson said. “It’s a matter of fairness. When a defendant is facing a couple of months in jail for an alleged supervised release violation, we don’t think twice about making sure he has a lawyer for that proceeding. For a great many of the inmates looking to benefit from the retroactive crack guideline, years in jail are at stake.”

Public defender offices have played a key role in each court that has had to process such requests, adding to staff workloads. And as anticipated, much of the increased workload has fallen to probation and pretrial services officers. Statistics compiled by the Administrative Office through late April reflect over 8,000 crack-resentencing investigations assigned to officers for review of eligibility and/or a report to the court.