March 3, 2008
By Charles "Cully" Stimson
UnlessCongress acts quickly, on March 3
thousands of convicted felons will be allowed to petition federal
judges to get out of jail early.
The U.S. Sentencing Commission recently issued new guidelines
that make retroactive revised sentences for crack-cocaine
possession. But all stakeholders in the criminal justice system --
defendants, prosecutors, defense counsel, the police, probation
officers, judges and, most importantly, the public, deserve
Congress should move swiftly to reject the guidelines that would
give duly convicted recidivists and violent felons a "Get Out of
Jail Free" card and allow them to re-litigate their sentences.
Let's not forget why those sentences were harsh. By 1986, cheap
crack-cocaine infested American inner-cities, bringing epidemic
levels of violence. Congress passed tough sentencing laws to curb
The Commission adopted Congress' 100-to-1 crack-to-powder ratio
as the basis for its 1987 guidelines on penalties relating to
crack. Defendants caught with five grams of crack faced a five-year
mandatory minimum sentence, and those with 50 grams, a 10-year
Those caught with powder cocaine received substantially lower
sentences. The tough penalties for crack won wide support, and
Congress and the courts repeatedly have affirmed that get-tough
Yet opinions on the crack/powder sentencing disparity changed
over time. The epidemic gradually waned in response to innovative
policing strategies and, in part, to the tough mandatory
In April 2007, the Commission lowered the sentencing guidelines
for crack. Because Congress didn't act to overturn the revised
guidelines, they became law last November.
What's at issue now, however, is how that change should apply to
those convicted before the new guidelines came into effect. The
Commission also made the lower sentences retroactive, effective
Earlier this month, Attorney General Michael Mukasey asked
Congress to pass legislation barring retroactivity for most of
those convicted under the old guidelines, warning that failure to
act would make 1,600 convicted crack dealers eligible for immediate
release and could lead to decreased sentences for more than 20,000
crack dealers overall.
Critics accused him of trying to "scare" Congress into acting
and that his alarm was "unwarranted." They note that any sentence
reductions would have to be approved by a federal court, which will
ensure that convicts who represent a danger to public safety don't
get out early.
The issue, however, is not whether we trust judges to follow the
law and exercise their considered discretion, but what the policy
should be in the first place.
Public safety isn't the only ground for concern about wholesale
retroactivity. Justice and fairness complicate things.
As for justice, it is not enough to focus on the hyper-technical
details of the sentencing guidelines without considering how
prosecutors do their jobs and how retroactivity will throw a wrench
into the system.
Prosecutors exercise great discretion in developing their cases.
Before they even begin an investigation, they know which crimes are
"easy" to prove, which crimes take more time and resources to
prepare for trial and what sentences are associated with each
Proving a possession of crack-cocaine case is relatively easy.
Thus, when choosing how to prosecute a defendant involved in a case
involving drugs, guns and other violence, the government often
takes the path of least resistance; sometimes that means
prosecuting the drug charge and not developing the gun or violent
crime aspects of the case.
Prosecutors make deals with defendants because it serves
fairness and prosecutorial economy. Over 90 percent of criminal
cases are resolved by plea bargain. Defendants who plead guilty do
so in exchange for the prosecution dropping other charges.
This complicates things. For example, a prisoner who received a
10-year sentence for dealing crack but wasn't charged with a
weapons offense due to prosecutorial discretion may get a few years
knocked off of his sentence, while a prisoner with a 10-year
sentence for the same weapons offense alone gets nothing. That
As for fairness, there is a strong argument that first-time and
non-violent crack offenders got a raw deal under the old sentencing
scheme. As a matter of public policy, Congress should allow the
reduced sentencing guidelines to be retroactively applied to
On the other hand, what could be fairer than a recidivist or
violent felon receiving a crack sentence in accordance with the law
at the time of trial?
It's not unfair for a career criminal who broke the law to get
the punishment he knew was coming. In the interests of all
concerned, Congress should refuse to give career criminals the
privilege of another sentencing hearing.
Cully Stimson, a former prosecutor and defense attorney,
is a senior legal fellow.
First appeared in FoxNews.com
Unless Congress acts quickly, on March 3 thousands of convicted felons will be allowed to petition federal judges to get out of jail early.
Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow
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