Sentencing Commission Makes Crack Amendment Retroactive

The U.S. Sentencing Commission announced yesterday that the most important of the recent changes to the crack sentencing guidelines will be made retroactive, assuming Congress does nothing to block retroactivity before November 1.   Filling in the details, the Commission has now posted the unofficial “reader-friendly” version of its new retroactivity amendment.  The news is very good for defendants serving long prison terms under the prior, harsher versions of the crack sentencing guidelines.  It is also important to note, however, that the Commission used this amendment as an occasion to make some subtle, but significant, changes to the retroactivity guideline that will diminish the value of retroactivity to some defendants with pending or future sentence modification requests.

Here are the highlights of the Commission’s work.

First, the big, good news for crack defendants: The Commission chose to make retroactive the changes to the drug quantity table that were promulgated in April.  The Commission also made retroactive another guidelines amendment that reduces sentences for crack defendants convicted of simple possession.  (To be technically precise, these are Parts A and C of Amendment 750.)  These were the two decisions that I (and many other witnesses) advocated most forcefully for at the June hearing on retroactivity (see my post here), and they will make a big difference for a large number of people.  According to Commission analysis, “approximately 12,000 offenders would be eligible to seek a reduced sentence and the average sentence reduction would be approximately 23 percent.”  To be sure, district judges will have discretion to turn down any sentence-modification requests they receive, but the experience with retroactivity for the 2007 crack amendment indicates that the great majority of eligible defendants will indeed be granted sentence reductions.

Second, the Commission wisely rejected the Administration’s misguided request to disqualify defendants above Criminal History III or with firearms involvement.  (See my post here.)

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Milwaukee Foreclosure Mediation Program: Theory to Practice

Andrea Schneider and Natalie Fleury have a new paper on SSRN that describes the Milwaukee Foreclosure Mediation Program and analyzes the MFMP’s design by reference to dispute resolution theory.  The MFMP responded to the ongoing foreclosure crisis in Milwaukee, emerging from an initiative involving Marquette Law School and several government agencies, elected leaders, and community organizations.  The MFMP creates voluntary mediation opportunities for homeowners and lenders in the hope of renegotiating payment terms such that both sides will benefit.  So far, the results seem impressive, with home-retention agreements reached in more than forty percent of mediations and high levels of satisfaction reported by program participants.

Andrea and Natalie conclude as follows:

The opportunity to put years of writing and work in the field to use to help out the city, state, and court system was an honor and unique opportunity for the law school. Both professors and students witnessed law school teachings put to work and had a rewarding impact in their own backyard.  It also has given us, as designers, far greater insight into the local government and local community than we would have had without this collaboration. Most importantly, mediation has worked in exactly the way that we theorized. The communication between the parties is vastly improved through the program than it would be otherwise. Parties have control over the outcomes, not perfectly, but again, much more so than they would have in the alternatives. And the program provides for efficient solutions as the city continues to struggle with foreclosures. Moving forward, we have to map student availability and interest with the needs and opportunities presented by the program. But we have witnessed the putting of theory into practice in a wonderful way while recognizing that we would have all preferred that this particular need not exist.

Their paper, entitled “There’s No Place Like Home: Applying Dispute System Design Theory to Create a Foreclosure Mediation System,” will appear in the Nevada Law Journal.

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