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CrackRetroactivity Comm Revision

CrackRetroactivity Comm Revision

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Published by: mary eng on Apr 09, 2013
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1
STEVEN T. WAX
 
Federal Public Defender STEPHEN R. SADYChief Deputy Defender Steven JacobsonBryan E. Lessley
 
Nancy BergesonChristopher J. SchatzEllen C. Pitcher Craig Weinerman
 
Mark Bennett Weintraub
 
Gerald M. NeedhamThomas J. Hester Ruben L. IñiguezAnthony D. BornsteinLisa Hay
FEDERAL PUBLIC DEFENDER
DISTRICT OF OREGON101 SW Main Street, Suite 1700Portland OR 97204503-326-2123 / Fax 503-326-5524
Branch Offices:151 W. 7th, Suite 510 15 Newtown StreetEugene, OR 97401Medford, OR 97501541-465-6937 541-776-3630Fax 541-465-6975Fax 541-776-3624Tonia L. Moro +Susan RussellPatrick EhlersFrancesca FrecceroC. Renée ManesAmy BaggioNell BrownKristina HellmanJames Maus +Harold DuCloux IIIAlison M. ClarkLynn Deffebach
i
Michelle Sweet
i
 Shauna Curphey
 
i
 
Eugene Office+ Medford Office
i
Research/Writing Attorney
Dear Members of the Sentencing Commission:Thank you once again for the opportunity to address the Commission on November 13, 2007, regarding the retroactivity of the crack amendments to the Guidelines. During thequestion period, I stated that I would provide an adapted form of the memorandum we have provided to all Federal Defenders. In doing so, I would like to be clear on several issues.First, there is no uniform policy among Federal Defenders regarding the approach toretroactivity; each District will need to determine whether the suggestions from the marijuanaexperience should be adopted in the context of crack retroactivity. Second, in Oregon,although we have agreed to share information and approach the matter cooperatively if theamendments are made retroactive, the United States Attorney’s office for the District of Oregon has not entered any formal agreement regarding the disposition of cases if theCommission rejects the Department of Justice’s opposition to retroactivity. Third, theadapted format below is from the concrete steps urged by memorandum and subsequentemails, with some revisions and without including work product information.
The following reflects a 1995 protocol circulated by the Oregon office, where largenumbers of marijuana growers became eligible for § 3582(c) motions, with someadaptation for crack cocaine cases.Communicate With The Other Players:
The most important step from which all elsefollowed was communication with the Chief Judge, the United States Attorneys Office, theProbation Office, and the Bureau of Prisons. All players have an interest in makingretroactivity work smoothly, without allocation of resources not previously earmarked for dozens or hundreds of resentencing motions. We want our clients to be in the best positionto maximize the potential benefits of a sentence reduction scheme that still leaves discretionwith the sentencing judge. We need to be sure CJA panel attorneys are aware of theGuidelines change and the possibilities of retroactive resentencings.
 
2
Identify The Potential Litigants:
A reliable and complete list of crack cocaine sentencingsis not as simple as one would think. In 1995, the Oregon FPD compiled its in-office list, thencompared it against U.S. Attorney and Probation Office lists, as well as lists from theSentencing Commission. The BOP also provided its list from the Sheridan institutions, sowe were able to either assure we had the cases covered or we could refer the inmate tocounsel in the proper District (
i.e.
, where the inmate was sentenced). It is unclear whether the Sentencing Commission will be providing us with lists of crack sentencings. Becausethe Probation Office in your District probably has identified, or can identify, most if not all potentially affected individuals, and the Sentencing Commission may not, it is very helpfulto work with your Probation Office to compile a comprehensive list, as the Oregon office didin Attachment A.
Obtain Appointments And Authorizations:
The initial contact with potential beneficiariesof the amendment was by letter; the form letter we sent is Attachment B. The representationof former clients is arguably within the scope of the initial appointment order, but we alsoneeded to assure representation for persons who previously had either Criminal Justice Actcounsel or who became indigent after representation by private counsel. The letter to theMagistrate Judge requesting mass appointments of counsel is Attachment C. At theorganizing and educating stages, we worked with all clients, regardless of prior conflicts.For individual resentencings, individual lawyers may be needed from the CJA panel.
Educate The Clients:
One of our most important functions is to make sure our clients makedecisions based on correct information, especially in the prison setting where rumors can be pretty wild. Explaining the benefits, risks, and limitations of the retroactive amendment will pose different challenges in different Districts depending on numbers and proximity toinstitutions. Individual communication in visits, phone calls, and letters is important, but – if possible – meetings with groups of prisoners has some efficiency and substantiveadvantages. The BOP at Sheridan has allowed meetings with groups of affected prisoners,which relieves the institution of having to go through the time-consuming effort of arrangingindividual meetings. The Oregon marijuana team met with large groups of inmates at boththe Sheridan camp and the FCI: first, we met with the whole group to present informationand to answer non-client specific questions; second, we met with the individuals privatelywhile the others waited – the individual meetings could be much shorter because most of theissues were already out and discussed. This transparency in the prison was important:everyone had the same basic information and heard responses to the same general questions,which kept rumor mongering and anxiety to a minimum.
Gather The Necessary Information:
The basic text is the Presentence Report and theStatement of Reasons Order. For the marijuana retroactive amendments, the Oregon
 
3Probation Office made available these basic court documents, also dividing them into thecategories of persons in custody, on supervised release, and out of custody. The first groupwe ranked by projected release date, which the BOP provided but which is also easilyavailable from Inmate Locator on the BOP website, www.bop.gov. Although we ultimatelywere able to obtain orders regardless of the release dates, it makes sense to be sure that theclients who should already have been released are addressed first. The client interview sheetshould be modified for crack cocaine cases.
Recalculate The Sentence:
With the help of a paralegal, we then recalculated the sentence,assuming all other specific offense characteristics and adjustments, as well as the same placein the Guidelines range. We also evaluated whether the person would be entitled toimmediate release, whether other factors were likely to result in a better sentence, and theeffect of any applicable mandatory minimums. The worksheet should be adapted for thecrack amendment.
Negotiate With The Government:
During the implementation of the marijuanaamendments, the government and our office did an initial review of the cases to determinewhich could likely be resolved by negotiation. For those that were not amenable to easyresolution, the cases were referred to the original prosecutor and defense counsel for either further negotiations or litigation. In the marijuana context, the vast majority of cases wereresolved by agreement because the certainty and speed of a negotiated settlement outweighedthe value of litigation.
Set Up A Remedy For Over-Incarceration:
For some clients, the new sentence meansrelease should already have occurred. In
United States v. Blake
, cite, the court found that thenew projected release date triggered supervised release, providing day-for-day reduction inthe period of supervised release. By a 1997 Guidelines amendment to U.S.S.G. § 1B1.10 (b),the Commission adopted a program statement limiting sentence reductions to time served, but, in Application Note 5 notes the availability of equitable relief from over-incarceration,considering the totality of circumstances, in the form of reduced, modified, or terminatedsupervised release under 18 U.S.C. § 3583. The original reason for the Guidelinesamendment became obsolete with the Supreme Court case, in the context of 
 Bailey
, reversing
 Blake
, which also affirmed the availability of § 3583(e) relief.
United States v. Johnson
, 529U.S. 53, 60 (2000)(“There can be no doubt that equitable considerations of great weight existwhen an individual is incarcerated beyond the proper expiration of his prison term.”). Thisremedy for over-incarceration has also been approved by the Ninth Circuit in the context of good time credits (
 Mujahid v. Daniels
, 413 F.3d 991, 994-95 (9th Cir. 2005)), and DAPdenial (
Gunderson v. Hood 
, 268 F.3d 1149, 1151 (9th Cir. 2001)). There is an open questionhow a sentence to time served is determined given the requirement that the BOP calculatethe service of the sentence in the first instance in Wilson.

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