USSC Crack Retroactivity Hearing

A report on the USSC crack retroactivity hearing

Wed Nov 14, 2007 7:22 am (PST)

From Professor Berman:

_A report on the USSC crack retroactivity hearing_

I am pleased to be able to provide, thanks to a person self-described as a “DC Wonk,” this informative report sent to me by e-mail concerning _today’s US Sentencing Commission hearing_ (http://www.ussc. gov/hearings/ 11_13_07/ AGD11_13_ 07.HTM) _http://www.ussc. gov/hearings/ 11_13_07/ AGD11_13_ 07.HTM_ (http://www.ussc. gov/hearings/ 11_13_07/ AGD11_13_ 07.HTM) about the possible retroactive application of the new crack guidelines:

I have no experience reading tea leaves, but it sure seemed to me that the USSC is grappling with *how* to implement retroactivity, not *if* they should. That they will vote to implement seems a foregone conclusion. The major issue seemed to be: would Booker apply to an inmate who was initially sentenced before Booker, and is now applying to get his sentenced reduced under retroactive application of the two-level reduction. Those who are against retroactivity argued that “of course it applies,” as they tried to demonstrate the huge caseload that will clog up the entire federal court system. (Repeated cites to the figure of 19,500 to whom retroactivity might apply.) One of the commissioners noted that Booker would apply according to Hicks, but that Hicks is only applicable in the 9th Circuit where only 500 of these 19,500 are; but that the 4th Cir views otherwise, and 5,000 (of the 19,500) reside there.

Another interesting observation: for the most part everyone was polite and cordial, with one exception. The spokesperson for DOJ, the USA from West NC was pretty extreme in her language (most of her presentation was anecdote) and a bit misleading with some of her stats. She was the only witness (as of 1:00 pm) to face any hostile questioning. If anyone was wavering (itself a dubious proposition) She was the only witness ( Most interesting was Prof Chanenson (Villanova) who argued that 3582(c)(2) was *not* a resentencing, but more like an “equitable sentencing procedure”, and therefore Booker had no relevance, and that the USSC and/or Congress would have the right to make this retroactivity fairly restrictive (so as to minimize the burden on the courts, on the Marshals who have to transport prisoners, etc.) The Prof had a number of other suggestions to minimize the impact of resentencing on the federal system, and the USSC seemed most interested.. T

All in all, a few commissioners seemed to almost openly support retroactivity (particularly Castillo, Howell, and Sessions); I suspect Hinojosa is sympathetic (although he was “above it all” as chair); John Steer said that he agreed with the Prof that Booker wouldn’t apply; Horowitz seemed sympathetic; Friedrich asked a question that was unflattering to DOJ. In summary here: there were some statements that seemed to indicate favor to retroactivity, and some neutral. I didn’t see any from any Commissioner to indicate s/he was against. I find it hard to see how anyone can scrounge four votes against retroactivity. In s

I am very pleased to hear that the Commissioners were in sync with Professor Steve Chanenson’s insights. I had the good fortune to talk with Steve as he was putting together his testimony, and I agreed with 99.9% of what he was planning to say to the USSC. I have provided for downloading below Steve’s written testimony, which is both effective and fascinating on many levels.

_Download chanenson_ussc_ Download Download Download _ (http://sentencing. typepad.com/ sentencing_ law_and_policy/ files/chanenson_ ussc_testimony_ november_ 13_ 2007.pdf) _http://sentencing. typepad.com/ sentencing_ law_and_policy/ files/chanenson_ ussc_testimony_ november_ 13_2007.pdf_ (http://sentencing. typepad.com/ sentencing_ law_and_policy/ files/chanenson_ ussc_testimony_ november_ 13_2007.pdf)