Fairness in Federal Cocaine Sentencing Policy

As is notorious, federal law treats one gram of crack cocaine the same as 100 grams of powder cocaine. Thus, a defendant caught with five grams of crack faces the same five-year mandatory minimum prison term as a powder cocaine offender in possession of 500 grams; 50 grams of crack produces the same ten-year minimum as five kilograms of powder. Despite a steady stream of criticism from academics, judges, and the United States Sentencing Commission over the past 20 years, Congress has declined to revisit the 100:1 ratio. In 2007, the Commission took a small step towards remedying the imbalance, reducing crack sentences under the advisory federal sentencing guidelines (which also contained a 100:1 crack/powder disparity) by two levels, then designating the amendment for retroactive application. As a result, thousands of federal crack prisoners received sentence reductions averaging about 17 percent. However, as the Commission itself acknowledged, true reform would require Congress to modify the 100:1 ratio and the resulting statutory mandatory minimum terms. Based on a change in position by the last major player supportive of the 100:1 disparity, the United States Department of Justice, that reform may, finally, be imminent.

In recent testimony before the Senate Judiciary Committee, Subcommittee on Crime and Drugs, Assistant Attorney General Lanny Breuer indicated that the Administration “believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” It is too soon to tell whether Congress will completely eliminate the disparity, as the Justice Department appears to advocate, or merely narrow it to, say, 10:1 or 20:1, as the Commission and some legislators have previously recommended. Whatever it elects to do, Congress should consider retroactive application of the statutory change. Experience under the Commission’s recent crack guideline amendment shows that courts are well-equipped to apply the change to existing sentences.

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Seventh Circuit Criminal Case of the Week: When Is a Firearm “Automatic”?

David Olofson loaned his Colt AR-15 rifle to Robert Kiernicki on several occasions.  On one occasion, Kiernicki attracted some unwanted attention at the firing range when the gun produced three- and four-round bursts with each trigger pull.  A complaint to the police resulted in an investigation that traced the weapon back to Olofson, who was charged in due course with knowingly transferring a machinegun in violation of 18 U.S.C. § 922(o).  A jury convicted Olofson of this crime, and the judge imposed a sentence of thirty months in prison.

Olofson’s appeal centered on the jury instructions, specifically, the trial judge’s definition of “machinegun” as follows: “any weapon which shoots . . . automatically more than one shot, without manual reloading, by a single function of the trigger.”  Although this language came directly from the statutory definition of “machinegun,” Olofson argued that the judge should have further clarified what the term “automatically” meant based on Staples v. United States, 511 U.S. 600 (1994), in which the Supreme Court defined an automatic weapon this way: “[O]nce its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted.”  Such a definition might have saved Olofson, for some of the evidence indicated that his gun jammed after shooting just three or four rounds — even if the “trigger [was not] released or the ammunition . . . exhausted.”

Olofson, however, was pretty clearly trying to give more weight to the Staples language than it could reasonably bear, and the Seventh Circuit held as much.

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Souter Retiring?

It is being reported today that Justice David Souter will step down at the end of this term.  Assuming this is true, I think that one of the most interesting questions in selecting his successor will be whether to follow the longstanding trend of promoting a judge from one of the nation’s intermediate federal courts of appeals.  (All of the sitting Justices were selected from the nation’s circuit courts of appeals.)  I understand the arguments for drawing Justices from the pool of sitting federal appellate judges: they have already survived rigorous vetting and Senate confirmation; with experience judging in an elite appellate court, they are uniquely prepared to hit the ground running at the Supreme Court level; and, coming from nonpartisan public offices, they may be perceived as more objective and neutral than nominees coming from the political sphere.  I think these are all good arguments.

But I also think that any collective decision-making body benefits from diversity in its composition.  For that reason, I suspect I was more sympathetic than most legal academics to the nomination of Harriet Miers.  And I took umbrage at the proprietary attitude towards the Supreme Court that some people in the world of elite federal appellate practice — both liberal and conservative — seemed to evince in their dismissal of Miers.

There is a balancing act, though: diversity should not come at the expense of competence — it is important that new Justices have the sort of training and experiences in the law that will allow them to scrutinize advocates’ arguments with rigor and to write opinions that will merit the respect of even those who disagree with the outcomes.  Some interesting places to look for such nominees besides the federal circuit courts of appeals would be state supreme courts and federal district courts.  (When was the last time a trial-court judge was promoted to the Supreme Court?)  I also like the idea of looking to a politically moderate governor or senator who has substantial legal practice experience.

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