Decision in Dorsey&Hill v. United States: Crack Cocaine v. Powder Cocaine- Is the Fair Sentencing Act applicable when the criminal was sentenced after the Fair Sentencing Act passed but the crime occurred prior to passage?

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Before going into Dorsey/Hill v. United States case, A little history is needed on this issue. 

Facts of the Case 

In 1986, during the Reagan administration’s anti-drug initiative, Congress enacted a federal sentencing policy of punishing crimes involving crack cocaine at a 100-to-1 ratio compared to crimes involving powder cocaine. For example, the sentencing guidelines prescribe the same sentence for a defendant convicted of dealing 500 grams of powder cocaine as they do for a defendant convicted of dealing only five grams of crack cocaine. Congress declined to repeal the 100-to-1 ratio despite the U.S. Sentencing Commission’s contention that the ratio led to exaggerated sentences for crack dealers.

Derrick Kimbrough pleaded guilty to distributing fifty or more grams of crack cocaine, along with other drug- and firearm-related offenses. The federal sentencing guidelines prescribed a sentence of between 19 and 22.5 years, but the district court judge considered this sentence “ridiculous.” Citing the Sentencing Commission’s reports, the judge decided to depart from the 100-to-1 ratio and hand down a sentence of 15 years. Since the Supreme Court’s decision in United States v. Booker the sentencing guidelines have been advisory only, but the guidelines range is still among the factors a court must consider before handing down a reasonable sentence.

On appeal, the U.S. Court of Appeals for the Fourth Circuit rejected the below-guidelines sentence as unreasonable. The Fourth Circuit ruled that trial judges act unreasonably when they depart from the guidelines on the basis of a disagreement with a congressional sentencing policy. Therefore, judges cannot hand down below-guidelines sentences merely in order to avoid the sentencing disparity caused by the 100-to-1 ratio. Needless to say, the U.S. Supreme court upheld the Federal District Trial Judge’s ruling. Here is the link to that case http://www.oyez.org/cases/2000-2009/2007/2007_06_6330.

References

“KIMBROUGH v. UNITED STATES,” The Oyez Project at IIT Chicago-Kent College of Law, accessed June 29,  2012, http://www.oyez.org/cases/2000-2009/2007/2007_06_6330.

On July 28, 2010, The house passed legislation reducing the two-old sentencing disparity between crack and powder cocaine offenses. This legislation is further proof that the war on drugs has never worked.  Democrats and Republicans both agree that drug laws are too harsh and need to be reformed.

Advocates pushed to totally eliminate the disparity but ultimately a compromise was struck between Democrats and Republicans to reduce the 100-to-1 disparity to 18-to-1. The compromise also eliminated the five year mandatory minimum sentence for simple possession of five grams of cocaine (about two sugar packets worth). The repeal of that mandatory minimum is the first repeal of a mandatory minimum drug sentence since the 1970s. Overall, the compromise bill is expected to reduce the federal prison population by thousands of offenders and save an estimated $42 million in criminal justice spending over the first five years.

http://www.huffingtonpost.com/jasmine-tyler/congress-passes-historic_b_662625.html

On April 28, 2011 the Commission submitted to Congress the proposed permanent
guideline amendment implementing the Fair Sentencing Act.   The proposed permanent
amendment will go into effect on November 1, 2011, unless Congress acts to modify or reject the
amendment.   

On June 30, 2011 the Commission voted to give retroactive effect to the proposed
permanent guideline amendment. The effective date of this retroactive effect and changes to
§1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range),
the policy statement governing retro-activity, is November 1, 2011. Until that date, the courts
should apply §1B1.10 as set forth in the 2010 Guidelines Manual (http://www.ussc.gov/Meetings_and_Rulemaking/Materials_on_Federal_Cocaine_Offenses/FAQ/FAQ_Crack_Guideline_Amendment.pdf).

 

That brings us back Dorsey v. United States.  Is the FSA applicable when the criminal was sentenced after the FSA passed but the crime occurred prior to passage?

Yes. In a 5-4 majority opinion by Justice Stephen G. Breyer, the Court held that the FSA’s lower minimum sentences apply to offenders sentenced after the FSA’s passage, even for crimes committed before its passage. In the Court’s view, Congress clearly intended for the sentencing guidelines to apply to pre-Act offenders. The FSA is intended to create uniformity and proportionality in sentencing, a goal that would be undermined by applying the old sentencing guidelines after the Act’s passage. Instead, applying the old sentencing guidelines would create the exact sentencing disparities that Congress tried to prevent with the FSA.

 

 

 

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WHAT CAN BE DONE: SOLUTION DRIVEN IDEAS

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WHAT CAN BE DONE: SOLUTION DRIVEN IDEAS

A COMMENTARY

In the wake of the Grand Jury’s “no indictment” decisions in countless, unjustified killings, people around the world are left with exhausted bodies, stifled voices and the inability to breathe. What must be done in order for all human lives to matter? Some of the questions that plague the minds of many, is when, if ever, will the criminal justice system protect those who cannot protect themselves and who are often subjected to aggressive policing and the powers of the government? When will those in authority be held responsible for their actions? How many people must lose their lives due to unwarranted force? When will justice be served? Although these questions are valid, they simply may be rhetorical riddles with no viable answers. Perhaps, if we can answer one question, we can find the answer to the questions mentioned above. What can be done? This commentary was not written with the intention to destroy the credibility of law enforcement; to express disgust for the criminal justice system or to encourage riots. Nor was it written to diminish the suffering of the families, the communities or the nation. This commentary moves beyond blaming and any apparent race issues. This commentary even avoids the reasoning’s of the Grand Jury. Also, this commentary moves past the warranted protesting around the nation. This commentary is intended to clear our minds momentarily, in order to find a long-term solution to an on-going problem we have been facing for centuries. This commentary is therefore, solution driven. We know immediate satisfaction is expected; however, the following are just a few suggestions that may render positive results in the long run.

Solutions:

1. Seek post-secondary education: research reveals higher education leads to better decision-making.*

2. Choose majors that matter socially such as criminal justice, political science, health and human services and the law: Obtaining degrees in these academic areas will allow you to place yourself in positions that will allow you to participate in law and policy-making, court processes and public advocacy.

3. Encourage the youth to continue their education: For they will inherent a society in need of fairness and accountability.

4. Excel in your studies: Learn how a law or policy is implemented and the stakeholders who have a direct interest. We then become better prepared to influence policies and laws.

5. Never neglect the power of your vote: Vote in not only the Presidential election but in all elections, can help elect those who share your views and can address your concerns.

DeShunda S. Brown-Boulcher

December 4, 2014

* Philip Oreopoulis and Kjell G. Salvanes, “How Large are Returns to Schooling? Hint: Money Isn’t Everything,”

NBER Working Paper 15339, 2009

RACIAL DISPARITIES STILL PREVALENT AMONG EX-OFFENDERS SEEKING EMPLOYMENT

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Feature: The Conviction That Keeps On Hurting — Drug Offenders and Federal Benefits

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Some 15 to 20 million people have been arrested on drug charges and subjected to the tender mercies of the criminal justice system in the past two decades. But, thanks to congressional drug warriors, the punishments drug offenders face often extend far beyond the prison walls or the parole officer’s office. A number of federal laws ostensibly aimed at reducing drug use block people with drug convictions from gaining access to federal benefits and services. These laws have a disproportionate impact on society’s most vulnerable or marginalized members — the poor, people of color, and women with children — and in some cases, do not even require that a person actually be convicted of a drug offense to be punished.

A growing number of groups and individuals ranging from the American Bar Association to welfare rights organizations, public health and addiction groups, drug reform organizations, and elected officials have called for changes in these laws or their outright repeal, saying they are cruel, inhumane, counterproductive, and amount to “double jeopardy” for drug offenders trying to become productive members of society.

“We feel that these laws are discriminatory and tend to focus on an illness as opposed to a crime,” said Alexa Eggleston of the Legal Action Center, one of the key groups in the movement to adjust those laws. “We also think that if you have a conviction, you should be able to serve your time and come out and resume your life. We say we want people to get sober, get treatment, get a job, get housing, but then we set up all these barriers and roadblocks that seem designed to stop them from moving forward. These lifetime bans are very destructive of people’s ability to reintegrate into society and move forward with their lives as productive citizens.”

RESOURCE

http://stopthedrugwar.org/chronicle/2007/feb/04/feature_conviction_keeps_hurting

Michelle Alexander – The New Jim Crow: Mass Incarceration in the Age of Colorblindness

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http://www.youtube.com/watch?v=tdRznEliyzk&feature=related

Michelle Alexander on the War on Drugs and the Politics Behind It

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http://www.youtube.com/watch?v=P75cbEdNo2U This is the Youtube link.

Michelle Alexander also has a book called the “Mass Incarceration: The New Jim Crow” It takes the blinders off what is really going on with the mass incarceration. 

 

Supreme Court Bans Life Without Parole for Juveniles Convicted of Murder

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On Monday, June 25, 2012, the Supreme Court ruled that state laws that mandatorily sentence juveniles convicted of murder to life in prison without parole are unconstitutional. Life without parole for juveniles violates the Eighth Amendment’s prohibition on cruel and unusual punishment, the high court ruled in a 5-4 decision. The ruling could affect nearly 2,500 juvenile prisoners.

This decision reflects recent Supreme Court rulings on juvenile sentencing. The high court in 2010 declared juveniles found guilty of non-homicides could not receive life without parole, and in 2005 the court banned the death penalty for juveniles.

Reference

JUVJUST@usdoj.gov Retrieved on July   2, 2012 from: https://sn2prd0202.outlook.com/owa/?ae=Item&a=Open&t=IPM.Note&id=RgAAAADjnmuHyV38Ro4m8jYCYezoBwAQLOV6Ma8vRaUq6YwS5M6jAAAAACRUAAA4p6nOcu3dRqOxmL0oAeudAAALI7oeAAAA&pspid=_1341261622911_328452665

To view the decision, follow link:  http://www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf

United States Supreme Court passes Obama Health Care Bill: The Emergency Room does not have to be your primary care physican any longer.

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Millions of people will benefit from this new bill.  Please do not let the Romney masses convince you that it is a bad bill.  People need health insurance.  Diseases can spread from those who are not covered and can not go to the doctor for preventative care. People can actually die from curable illness due to the lack of health insurance.  Individuals who use the Emergency Room and their primary physician can actually get their own doctor.  Chronic illness can alleviated or managed. 

No one really likes change as much as they look for it, request it, and try to achieve it.  Give this bill a chance. We are moving in the right direction.  No new product or services is created without it being tweeked.  Any glitches will be worked out and people in American will much healthier.  Many of the people who oppose this bill are well off, insured, and healthy.  Speak for the uninsured, the ex female drug offender who can not get a pap smear, a mammogram, a regular cancer screening.  She gets to die from something that could have been treated or even cured. However, she has no health insurance so she runs the risk of getting extremely ill and being unable to take care of her family.  Get Real People…Stop Hating on Everything President Obama does, If you look back at the last few Presidents America had, you will see that they performed worst than any president in the history of America.  Let move on, and leave some hope, a future, and the earth for the next generation. 

 

 

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