Breaking News: Senators Ask DOJ for Pipeline Retroactivity

Big news today: Senators Richard Durbin (D-Ill.) and Patrick Leahy (D-NY) have sent Attorney General Eric Holder a very interesting letter. The letter (see link below) asks AG Holder to instruct Department of Justice prosecutors to apply the Fair Sentencing Act's crack reforms to all federal crack offenders who committed their crimes before August 3 but have not been sentenced yet. These are sometimes called "pipeline" cases. The federal "savings clause," found in 1 U.S.C. section 109, says that courts can't apply new, shorter sentences to people who committed their crimes before those sentences became law -- even if they're sentenced for those crimes after the new sentences are in effect. That contention is getting challenged in pipeline crack cases around the federal courts as we speak, but in many districts, the DOJ's position has been that pipeline cases can't benefit from recent crack reforms.

But, Senators Durbin and Leahy say, whether the DOJ enforces the savings clause is entirely up to the DOJ (ah, the freedom that unreviewable prosecutorial discretion brings!). "Indeed," write the Senators, "it is the Justice Department's obligation not simply to prosecute defendants to the full extent of the law, but to seek justice. In this instance, justice requires that defendants not be sentenced for the next five years under a law that Congress has determined is unfair."

Hear, hear. And you can read the whole letter here:  Senators' Letter to Holder

Of course, this doesn't change the fact that the Fair Sentencing Act doesn't apply to all the people who inspired its creation:  the thousands of men and women already sitting in federal prison serving a crack sentence under the old racially discriminatory and completely unfair 100-to-1 crack-powder ratio.