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    2011 01 18 LTR To AGHolder On Crack Sentencing

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    The Leadership Conference
    The Leadership Conference on Civil and Human Rights urges Attorney General Holder to issue guidance instructing federal prosecutors to apply the reduced mandatory minimum sentences in the newly passed Fair Sentencing Act of 2010 to all defendants who have not yet been sentenced, regardless of when their criminal conduct took place. The letter argues that applying the previous, stricter sentencing guidelines to conduct before the Act would contradict Congress's intention to remedy longstanding unfairness in cocaine sentencing. It cites a recent court decision agreeing with this view and calls on the Attorney General to clarify that Department of Justice policy is to apply the Act's sentencing changes as Congress intended.

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    2011 01 18 LTR To AGHolder On Crack Sentencing

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    The Leadership Conference
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    The Leadership Conference on Civil and Human Rights urges Attorney General Holder to issue guidance instructing federal prosecutors to apply the reduced mandatory minimum sentences in the newly passed Fair Sentencing Act of 2010 to all defendants who have not yet been sentenced, regardless of when their criminal conduct took place. The letter argues that applying the previous, stricter sentencing guidelines to conduct before the Act would contradict Congress's intention to remedy longstanding unfairness in cocaine sentencing. It cites a recent court decision agreeing with this view and calls on the Attorney General to clarify that Department of Justice policy is to apply the Act's sentencing changes as Congress intended.

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    2011 01 18 Ltr to AGHolder on Crack Sentencing

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    The Leadership Conference on Civil and Human Rights urges Attorney General Holder to issue guidance instructing federal prosecutors to apply the reduced mandatory minimum sentences in the newly passed Fair Sentencing Act of 2010 to all defendants who have not yet been sentenced, regardless of when their criminal conduct took place. The letter argues that applying the previous, stricter sentencing guidelines to conduct before the Act would contradict Congress's intention to remedy longstanding unfairness in cocaine sentencing. It cites a recent court decision agreeing with this view and calls on the Attorney General to clarify that Department of Justice policy is to apply the Act's sentencing changes as Congress intended.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    306 views2 pages

    2011 01 18 LTR To AGHolder On Crack Sentencing

    Uploaded by

    The Leadership Conference
    The Leadership Conference on Civil and Human Rights urges Attorney General Holder to issue guidance instructing federal prosecutors to apply the reduced mandatory minimum sentences in the newly passed Fair Sentencing Act of 2010 to all defendants who have not yet been sentenced, regardless of when their criminal conduct took place. The letter argues that applying the previous, stricter sentencing guidelines to conduct before the Act would contradict Congress's intention to remedy longstanding unfairness in cocaine sentencing. It cites a recent court decision agreeing with this view and calls on the Attorney General to clarify that Department of Justice policy is to apply the Act's sentencing changes as Congress intended.

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    of 2

    Officers

    Interim Chairperson
    January 18, 2011
    Judith L. Lichtman
    National Partnership for Women
    & Families
    Vice Chairperson
    The Honorable Eric Holder
    Karen K. Narasaki
    Asian American Justice Center
    Attorney General
    Secretary
    Barry Rand
    Department of Justice
    AARP 950 Pennsylvania Ave., NW
    Treasurer
    Lee A. Saunders Washington, DC 20530
    American Federation of State,
    County & Municipal Employees

    Executive Committee
    Barbara Arnwine
    Lawyer’s Committee For Dear Attorney General Holder:
    Civil Rights Under Law
    Arlene Holt Baker
    AFL-CIO
    Marcia Greenberger
    National Women’s Law Center
    On behalf of The Leadership Conference on Civil and Human Rights, a diverse coalition of
    Linda D. Hallman more than 200 national organizations charged with promoting and protecting the rights of all
    American Association of
    University Women persons in the United States, we urge you to issue guidance instructing all federal prosecutors
    Mary Kay Henry
    Service Employees to apply the modified mandatory minimums in the new Fair Sentencing Act of 2010 to all
    International Union
    Andrew J. Imparato defendants who have not yet been sentenced, including those whose conduct predates the
    American Association of People
    with Disabilities legislation‟s enactment.
    Benjamin Jealous
    NAACP
    Michael B. Keegan
    People For The American Way The passage of the FSA was a watershed moment in the move toward fairness in criminal
    Floyd Mori
    Japanese American Citizens sentencing and in the effort to correct a long standing wrong. Your leadership and support
    League
    Marc H. Morial for the FSA were not only crucial to its passage, but also conveyed the need for immediate
    National Urban League
    Janet Murguia action. As you noted last year when testifying before the Senate, “the stakes are simply too
    National Council of La Raza
    Debra Ness high to let reform in this area wait any longer.”1 We agree.
    National Partnership for Women
    And Families
    Terry O’Neill
    National Organization for Women When Congress passed the FSA, it did so with the intention of restoring fairness to federal
    Jacqueline Johnson Pata
    National Congress of cocaine sentencing. To that end, Congress granted the U.S. Sentencing Commission
    American Indians
    John Payton emergency authority in the new law to “promulgate the guidelines, policy statements, or
    NAACP Legal Defense and
    Educational Fund, Inc. amendments provided for in this Act as soon as practicable”2 precisely because there was
    Dennis Van Roekel
    National Education Association widespread agreement that the old regime constituted an intolerable injustice that needed to
    Anthony Romero
    American Civil Liberties Union be remedied immediately. On October 21, 2010, the Commission acted on that emergency
    Thomas A. Saenz
    Mexican American Legal Defense power by issuing a temporary amendment to account for the changes in the penalty structure
    & Educational Fund
    David Saperstein that went into effect on November 1, 2010.
    Religious Action Center for
    Reform Judaism
    Shanna L. Smith
    National Fair Housing Alliance All of this would lead us to think that the Justice Department would work with some urgency
    Joe Solmonese
    Human Rights Campaign to prosecute crack offenders along the new guidelines consistent with the remedial purpose of
    Randi Weingarten
    American Federation of Teachers
    the Act. But to our dismay, Assistant U.S. Attorney Michael J. Conley recently argued in
    Mary G. Wilson
    League of Women Voters
    court that it was the Justice Department‟s policy, and not simply a matter of prosecutorial
    Sara Najjar-WIlson discretion, to apply the old mandatory minimums to all future prosecutions and sentencing
    American-Arab Anti-
    Discrimination Committee based on pre-August 3, 2010, conduct.3
    Compliance/Enforcement
    Committee Chairperson
    Karen K. Narasaki
    Asian American Justice Center
    President & CEO
    Wade J. Henderson
    Executive Vice President & COO
    Karen McGill Lawson 1
    Holder, Eric. Statement to the United States Senate, Committee on the Judiciary. Oversight of the
    Department of Justice, Hearing, November 18, 2009.
    2
    “Fair Sentencing Act of 2010” (PL 111-220, August 3, 2010)
    3
    U.S. v. Douglas, _F. Supp.2d _, 2010 WL 4260221 (D. Maine, October 27, 2010) (Hornby J.) at 2,9
    and FN 29.
    January 18, 2011
    Page 2 of 2

    Judge D. Brock Hornby, an appointee of President George H.W. Bush, who presided over United States
    of America v. Douglas, rightly took issue with this policy decision and noted the potentially absurd
    consequences of doing so.4 In his opinion, Judge Hornby wrote, “What possible reason could there be to
    want judges to continue to impose new sentences that are not „fair‟ over the next five years while the
    statute of limitations runs? … I would find it gravely disquieting to apply hereafter a sentencing penalty
    that Congress has declared to be unfair.”5

    As Attorney General, you are well within the bounds of your authority to issue such guidance since there
    is ample precedence for producing various memoranda addressing Department policies with respect to
    charging, case disposition, and sentencing. Shortly after the constitutionality of the Sentencing Reform
    Act was sustained by the Supreme Court in 1989, Attorney General Richard Thornburgh issued a
    directive to federal prosecutors to ensure that their practices were consistent with the principles of equity,
    fairness, and uniformity.

    Several years later, Attorney General Janet Reno issued additional guidance to address the extent to which
    a prosecutor‟s individualized assessment of the proportionality of particular sentences could be
    considered. The recent passage of the FSA emphatically reaffirms Congress‟ intention that crack
    defendants are entitled to fair treatment. It makes no sense to apply punishment differentially for
    defendants whose conduct occurred a few days apart.

    For these reasons, we call upon you to issue new guidance to all Justice Department prosecutors that
    closely follows the Congressional intent behind the Fair Sentencing Act of 2010 found in the legislative
    history surrounding its passage. Such guidance necessarily entails seeking sentences consistent with the
    Act‟s reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when
    their conduct took place.

    Thank you for your consideration. If you have any questions, please contact Lisa Bornstein, Senior
    Counsel, at (202) 263-2856, or Nancy Zirkin, at (202) 263-2880.

    Sincerely,

    Wade Henderson Nancy Zirkin


    President & CEO Executive Vice President

    4
    Several other district courts have agreed, relying on Judge Hornby‟s opinion, see e.g., United States v. Johnson,
    No. 6:08-cr-270 (M.D. Fla. Jan. 4, 2011) (Presnell, J.); United States v. English, No. 3:10-cr-53 (S.D. Iowa Dec. 30,
    2010) (Pratt, J.) ; United States v. Gillam, No. 1:10-cr-181-2 (W.D. Mich. Dec. 3, 2010) (Neff, J.); United States v.
    Jaimespimentz, No. 09-cr-488-3 (E.D. Pa. Nov. 24, 2010) (Baylson, J.); United States v. Angelo, Crim. No. 09-202
    RWZ (Oct. 27, 2010) (Zobel, J.); United States v. Jones, No. 4:10 CR 233 (N.D. Ohio Jan. 3, 2011) (Dowd, J.);
    United States v. Favors, No. 1-cr-00384-LY-1 (W.D. Tex. Nov. 23, 2010) (Yeakel, J.).
    5
    Douglas, _F. Supp.2d _, 2010 WL 4260221 (D. Maine, October 27, 2010) (Hornby J.).

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