Senate votes to change cocaine sentencing rules
By JIM ABRAMS (AP) – Mar 17, 2010
WASHINGTON — Legislation approved by the Senate on Wednesday would significantly reduce the disparity in sentences handed out to those convicted of crack and powder cocaine charges.
Currently, a person convicted of crack cocaine possession gets the same mandatory jail time as someone with 100 times the same quantity of powder cocaine. That 100-1 ratio has been particularly hard on the black community, where convictions on federal crack laws are more prevalent.
Under the measure, approved by a voice vote, the ratio would be reduced to 18-1.
Sen. Dick Durbin, D-Ill., who worked out the legislation with Senate Judiciary Committee Republicans, said he had initially wanted a straight 1-to-1 ratio, but that the final product was a good bipartisan compromise.
"If this bill is enacted into law, it will immediately ensure that every year, thousands of people are treated more fairly in our criminal justice system," he said.
He said the bill also would mark the first time since 1970 that Congress has repealed a mandatory minimum sentence.
Under current law, possession of five grams of crack cocaine triggers a mandatory minimum five-year prison sentence. The same mandatory sentence is handed down to a person convicted of trafficking 500 grams of powder cocaine.
Durbin said that in 1986, when he was a member of the House, he supported creation of this 100-1 ratio. "Crack cocaine had just appeared on the scene, and it scared us because it was cheap, addictive. We thought it was more dangerous than many narcotics."
But he cited figures saying that while blacks make up 30 percent of crack users, they comprise more than 80 percent of those convicted of federal crack offenses. "Law enforcement experts say that the crack-powder disparity undermines trust in the criminal justice system, especially in the African-American community."
Attorney General Eric Holder praised the Senate Judiciary Committee's approval of the bill last week. "There is no law enforcement or sentencing rational for the current disparity between crack and cocaine powder offenses, and I have strongly supported eliminating it to ensure our sentencing laws are tough, predictable and fair."
Wade Henderson, president of the Leadership Conference on Civil and Human Rights, said his group had been working two decades to eliminate the sentencing disparity and was disappointed that was not accomplished in the bill. He said the bill "represents progress but not the end of the fight."
The Drug Policy Alliance also found the bill to be lacking for the same reason.
"Today is a bittersweet day," said Jasmine L. Tyler of the Drug Policy Alliance. By not eliminating the disparity, Tyler said in a statement, the Senate "has proven how difficult it is to ensure racial justice, even in 2010."
Under the bill, possession of 28 grams of crack would trigger the five-year mandatory sentence. The measure also increases fines for drug traffickers.
A companion bill is pending in the House.
The bill is S. 1789.
Justices Tackle Cocaine Sentencing Inequity
By ANNIE YOUDERIAN
Tuesday, March 30, 2010; Courthouse News Service;
WASHINGTON (CN) - The Supreme Court on Tuesday examined a case that could affect thousands of prisoners eligible for shorter sentences based on revised federal sentencing guidelines for crack cases. Justice Anthony Kennedy suggested that, given the rare instances when sentences are commuted, "something is not working in the system."
In Dillon v. U.S., the justices must decide whether a federal court can reduce a crack sentence beyond the amount specified by the U.S. Sentencing Commission.
Before the commission revised its crack guidelines in 2007, one gram of crack cocaine triggered the same sentence as 100 grams of powder cocaine. Recognizing that the 100:1 ratio presented an "urgent and compelling problem," Congress passed the Sentencing Reform Act, which retroactively reduced the ratio to 20:1. This dropped the base offense level for crack cocaine by two levels, from 38 to 36.
As a result, Percy Dillon's sentence was reduced from nearly 27 years to 22.5 years, but he argued that the district court could have gone lower. He cited the Supreme Court's decision in U.S. v.Booker, which held that the commission's guidelines are merely "advisory," not mandatory.
"Sentencing commission policy cannot override this court's clear and unambiguous directive to courts to treat the guidelines as advisory," Dillon's attorney, Lisa B. Freeland, argued.
Leondra Kruger, assistant to the solicitor general, urged the court to uphold the 3rd Circuit's refusal to further reduce Dillon's sentence, saying final sentences can't be changed except in limited circumstances. The extra reduction Dillon seeks would "undermine principles of finality," the government argued in its brief.
Justice Ruth Bader Ginsburg raised the equal protection concern that crack offenders would be able to "overcome the finality bar," while other inmates would not. "[W]hy should ... the courts say the finality bar is lifted only to the extent that the crack cocaine guideline disparity has been reduced?" she asked.
Freeland responded that once a judge agrees to resentence a defendant, "finality is extinguished," and the defendant must be sentenced anew. "[T]he real point here is that the new judgment is a new judgment; it is a new sentence," Freeland said. "This is not a reduction in the old sentence."
Justice Antonin Scalia offered her an alternative argument: "It is the nature of the sentencing commission's policy statement that is unconstitutional," he said. "And your point here is that the policy statement which says you effectively will disregard Booker is unconstitutional?"
"I agree," Freeland replied.
But the government's lawyer cautioned the court against allowing such across-the-board resentencing after each revision by the sentencing commission. "[T]hat would certainly provide a significant disincentive for the sentencing commission ever to revise sentencing guidelines in a downward direction," Kruger said.
Justice Stephen Breyer seemed to agree, expressing concern about reopening the sentence of "every single person who has already been convicted of a drug crime in the federal courts, of which there are probably tens of thousands."
Justice Kennedy, however, questioned Kruger about whether the government's sentencing limitations created a "one-way hatchet" barring model prisoners like Dillon from further reductions. During his time in prison, Dillon helped develop programs for at-risk youth and fellow inmates. Kennedy noted that none of the approximately 185,000 federal prisoners had their sentences commuted last year, and only five were granted commutations in 2008.
"Does this show that something is not working in the system?" he asked.
Amicus briefs on Dillon's side were filed by the Washington Legal Foundation, the Federal Public and Community Defenders, and the National Association of Federal Defenders.
The U.S. Sentencing Commission filed a brief supporting the government's position.
Justice Samuel Alito was recused from the case.
Was Justice Kennedy Criticizing Obama Policy?
The dialogue between Supreme Court justices and the Obama administration continues. During oral argument Tuesday in Dillon v. United States, Justice Anthony Kennedy pursued a line of questions that would be hard to interpret as other than critical of Obama administration policy (and the policy of previous administrations too) on commutations and pardons.
The case asks whetherfederal sentencingjudges can reduce theprison termsof defendants like Percy Dillon by an amount greater than what the U.S. SentencingCommission called for when it reduced the sentences for certain crack cocaine offenders in 2007. The justices were struggling with whether reducing his sentence would bea resentencing, a modification of the first sentence, or even something akin to a commutation.
In the background was information about Dillon himself, who turned out to be a model prisoner who developed African-American studies programs in prison and other outreach efforts to help fellow inmates and at-risk young people choose a path other than crime. That apparently led Kennedy to launch this dialogue with Leondra Kruger, assistant to the solicitor general:
KENNEDY: Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?
KRUGER: I am not aware of the answer to that, Justice Kennedy. It's certainly true that evidence of that type of rehabilitation factored into the government's recommendation in this case that Petitioner -
KENNEDY: And isn't the population of prisoners in the Federal prisons about 185,000 now?
KRUGER: I think -
KENNEDY: I think it is. And how many commutations last year? None. How many commutations the year before? Five. Does this show that something is not working in the system? 185,000 prisoners? I think that is the number.
KRUGER: I -- I'm not prepared to speak to that question today, Justice Kennedy.
We asked Margaret Love, a D.C. solo practitioner who was the pardon attorney in both the George H.W. Bush and Clinton administrations, and specializes in the area, her reaction to Kennedy's comments.
"I think the point Justice Kennedy was making was that, if it turns out that the law provides no relief in a case as apparently appealing as Mr. Dillon's, shouldn't the Department of Justice recommend clemency to the president?" Love said. "The fact that there are so many prisoners and so few grants of clemency (5 in the last two years) suggests that 'something is not working in the system.'"
Love also noted that Kennedy is a longtime critic of mandatory minimum sentences and of the growth in prison populations nationwide. Love was the reporter for Justice Kennedy's American Bar Association commission that looked at the criminal justice system in 2004 and concluded that it relies too heavily on incarceration. She recalled that in a2003 speech to the ABA, Justice Kennedy criticized mandatory minimum sentences as "unwise and unjust," and bemoaned the fact that pardons have “become infrequent,” and that the pardon process had been "drained of its moral force."Kennedy said,"A people confident in its laws and institutions should not be ashamed of mercy."
For more on the pardon power, and on Obama's non-use of it, check outthis remarkable blog.
Posted by Tony Mauro on March 31, 2010 at 09:23 AM
Cocaine sentencing inequity goes to top court
Supreme Court will hear Percy Dillon's plea for a substantial sentence reduction
Sunday, March 28, 2010
By Paula Reed Ward, Pittsburgh Post-Gazette
Senior U.S. District Judge Alan N. Bloch is known for handing down tough sentences. That's why it was so surprising when, at Percy Dillon's sentencing for selling crack and powder cocaine in 1993, Judge Bloch said on the record that he thought the young man was getting a raw deal.
"I don't say to you that these penalties are fair. I don't think they are fair," Judge Bloch said at the time. "I think they are entirely too high for the crime you have committed even though it is a serious crime."
But Judge Bloch, who first took the bench in 1979, went on to say that he felt that he was bound by the then-mandatory sentencing guidelines.
He ordered Mr. Dillon, who was 24 years old and had only two previous misdemeanor convictions, to serve nearly 27 years in prison.
"I was basically taking the rest of his life away," Judge Bloch later said at an annual meeting of the Pittsburgh American Civil Liberties Union.
So, in 2008, when Mr. Dillon submitted a motion to get his sentence reduced under a newly enacted amendment designed to address the inequity between powder and crack cocaine guidelines, he thought the judge might take the opportunity to give him a break.
Under the U.S. Sentencing Commission's change, defendants who had previously been sentenced for selling crack cocaine could petition for a two-level reduction.
In Mr. Dillon's case, that amounted to just over four years off his original sentence. But he argued to Judge Bloch that the court could reduce his time even more because the mandatory guidelines in place at the time he was originally punished were now advisory only.
Judge Bloch disagreed with him, and so did the 3rd U.S. Circuit Court of Appeals.
But on Tuesday, Mr. Dillon's federal public defender will get a chance to persuade the U.S. Supreme Court.
Entering prison
Mr. Dillon had never spent any time in jail before receiving his federal sentence in November 1993.
Though he was involved in a dangerous trade, Mr. Dillon figured he would be sent to the minimum-security camp when he was ordered to the Lompoc Federal Correctional Complex, about 175 miles northwest of Los Angeles.
"They drove across the street to the penitentiary. I'm like, 'Oh, my goodness, I'm going up in there?' Everyone looked at you like they want to kill you," said Mr. Dillon, who grew up in San Francisco.
"When I first was convicted, I was angry," Mr. Dillon said during a recent phone interview from the U.S. Penitentiary in Atwater, Calif. "I was upset like I was wronged and didn't deserve what happened to me."
It took him a while to adjust to prison life -- and to accept his fate.
When he was transferred in 1997 to the U.S. Penitentiary in Atlanta, he became interested in studying African-American history and culture. He started to read the works of Marcus Garvey and others.
"That's what inspired me. They just took me to a different level in life," he said.
Mr. Dillon, now 40, decided that he would not take anything negative from his prison stay.
"The only thing that could come from this is something good," he said.
Working in conjunction with staff at the University of California at Berkeley, Mr. Dillon helped implement a Kwanzaa program, as well as an African-American studies program at USP Atwater.
He also developed a life-skills program for youth in the community, in which other incarcerated men would serve as mentors.
Mr. Dillon "realized that his true restitution must be made and paid to the African-American community, his community," wrote Leng Miller, executive director of Hunters Point Family agency. She went on to describe Mr. Dillon as a "positive example of a strong African-American man and an asset to his community."
Mr. Dillon sees it as an obligation.
"You have to look at what's going on in the street today. [Young men] have no knowledge of self or culture beyond rap videos," he said.
When Mr. Dillon was young, he admits he got involved in selling drugs "to get fast money in bundles. ... I was chasing money -- astronomical amounts of money."
He came from a good background. He had parents who loved him and had good jobs, but none of that mattered.
"I was rebellious. I wanted to be me."
Now he regrets his decisions and has been working for years to make up for them.
Mr. Dillon earned his GED and a variety of training certificates, including ones in property management and custodial maintenance. He also studied the law.
When he learned that the U.S. Sentencing Commission was going to change the crack cocaine rules, he did his own research and represented himself in his first motion for sentence reduction -- sending it even before the commission made the amendment retroactive.
Judge Bloch dropped Mr. Dillon's sentence the requisite two levels, to 22 years 6 months.
"When he didn't go any lower, I was like, 'Damn, I have to do eight more years.' I didn't give up, though."
He appealed to the 3rd U.S. Circuit Court of Appeals, which agreed with Judge Bloch. Though the unanimous opinion found that Mr. Dillon would "likely be an ideal candidate for a non-Guidelines sentence," the three judges on the case agreed that the Supreme Court decision did not apply to sentence modification proceedings.
Mr. Dillon asked the U.S. Supreme Court to review his case, and in December, he learned they would take it.
"I was overjoyed. It was beautiful."
The Supreme Court
Doug Berman, a law professor at Ohio State University and expert in sentencing law, said he believes the court purposely chose Mr. Dillon's case.
Other defendants challenging the crack retroactivity reductions have asked the Supreme Court for review, and the court has rejected them.
"They have a sympathetic defendant here," he said.
What might help Mr. Dillon are the comments originally made by Judge Bloch lamenting that his hands were tied.
"I think that matters a lot," Mr. Berman said. "It makes it hard for the court to dodge that issue."
It is especially interesting that the Supreme Court took this type of case at all, because there is no split among the nine appellate circuit courts on the issue.
But, Mr. Berman said, with this issue, the Supreme Court justices will be able to make the law suit their preferences.
"You can wind your way toward whatever conclusion you find is appealing -- depending on what mechanism you use," Mr. Berman said.
The decision that made the sentencing guidelines advisory in the 2005 case, United States v. Booker, stands for the broad principle that judges should have more discretion, Mr. Berman said.