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As noted in this post, US Attorney General Merrick Garland issued new federal charging guidelines this past Friday. There are lots of thinkgs to say about a lot of the particulars of these guidelines (including why they took so long to be produced), although the bulk of the media coverage has been about the AG Garland's specific instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses." That intruction alone justifies lots of discussion, but I will start with one "looking back" matter and one "looking forward" matter:
1. Shouldn't past crack sentences merit "equivalent treatment" via compassionate release? This US Sentencing Commission data analysis from January 2022 suggests that there may be 8,000 or more current federal prisonsers serving crack sentences that are much longer than they would have received if they had receicved "equivalent treatment" to powder offenders at their initial sentencing. Though it may be claimed that not all current crack prisoners may be able to demonstrate "extraordinary and compelling reasons" for a sentence reduction under 3582(c)(1)(A), certainly some of them are likely to be able to do so. Presumably, federal prosecutors can and will now be fully supportive of efforts by crack prisoners to seek such reductions to at least the powder sentencing equivalent whenever there are any other bases to claim that "extraordinary and compelling reasons" support a sentence reduction. Moreover, as I see it, the historic problems and injustices of crack sentencing is alone an "extraordinary and compelling reasons" support a sentence reduction. I doubt federal prosecutors will agree with this assertion, but federal courts could certainly make such a finding and I would hope DOJ would not appeal such a finding if some district courts so rule.
But Senator Grassley's original proposal for a 2.5-1 cocaine sentencing ratio, as detailed here, called for essentially increasing punishment levels for powder cocaine along with loweing punishments for crack cocaine. Given that US Sentencing Commission data show that there are now nearly three times as many powder cases sentenced in federal courts as crack cases, it is possible that efforts to reduce disparities here (depanding on the particulars) could actually raise sentences overall. My guess is that any deal being stuck is likely to have a net reduction in expected prison time, but the devil will be in the statutory details. In addition, how the new US Sentencing Commission responds to any statutory reforms will be most consequential in the long run.
Sigh. Notably, this January 2022 US Sentencing Commission impact assessment estimated that retroactive application of the EQUAL Act would save about 50,000 years of imprisonment for the more than 7500+ persons incarcerated for crack offenses, but "only" a little over 2,000 prison years for each year going forward. Of course, any potential statutory reform that does not lower crack sentencing all the way down to be equal with powder cocaine sentencing will have a more modest impact, and eliminating retroactivity would diminish the impact even more.
Given that the House so overwhelming passed the EQUAL Act last year, I want to believe there is a chance for some kind of reforms in the next Congress even with the GOP in control of the House. But that might be crazy talk, so maybe this lame duck period is the last best chance for crack sentencing reform. But at this late date, I am certainly not optimistic.
Over the same period, independents' support has been as high as 68% and has only once fallen below the majority level (to 49% in 2020). The current reading is down 14 percentage points compared with 2000. 2ff7e9595c
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