Tuesday, April 26, 2011

Is Justice's Response Just?

On November 17, 2010, Senators Patrick Leahy (D-NY) and Richard Durbin (D-Ill.) wrote a letter to Eric Holder, the Attorney General and leader of the Justice Department.  The letter described how the Senators wanted the Justice Department to apply the freshly-minted Fair Sentencing Act of 2010 (a/k/a "the new crack law") to so-called "pipeline" cases.  A pipeline case is the case of a person who committed a crack offense before August 3, 2010 (the date the FSA became law), but hasn't been sentenced yet.

The problem? The FSA is silent about retroactivity. The law doesn't say whether it applies to pipeline cases -- or to anyone sentenced before August 3, 2010. Senators Leahy and Durbin's letter cleared this up with Attorney General Holder:  yes, they said, the Justice Department should apply the FSA's shorter crack sentences to pipeline cases.

Yesterday, the Justice Department responded to the Senators with this letter.  The long and short of it:  the Justice Department doesn't think the new, fairer crack punishments should be applied to pipeline cases -- or to anybody sentenced before the FSA became law.  In other words:  no retroactivity.

The letter is disappointing, because President Obama's Justice Department fought long and hard to fix the disparity between crack and powder cocaine sentences. It was even a campaign promise! Prosecutors have limitless discretion -- why couldn't the Justice Department simply order its own rank and file to use the new crack sentences instead of the old, unfair ones? From the letter, it appears to be a genuine belief that the new law simply doesn't allow it.

Whether or not you agree with the Justice Department's letter, it clearly shows that there is work left for Congress and the U.S. Sentencing Commission to finish. Congress should pass a new law making the FSA apply retroactively to all people serving crack sentences under the old law. The U.S. Sentencing Commission should make its recent proposed crack guideline changes retroactive.


Unfair is unfair, and unjust is unjust. Justice shouldn't depend on when a person committed his crime.

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