Sentencing Guidelines and Retroactivity

Unless you’ve been in a drug-induced haze, you’ve probably heard that the United States Sentencing Commission recently amended the Sentencing Guidelines to correct the crack/cocaine disparity. One of their most interesting aspects of these amendments–which became effective today–is that they are retroactive.

I write about fed courts, not criminal law, so the Sentencing Guidelines are outside my bailiwick. But these amendments have been table talk at my house over the last several months because my husband is a federal prosecutor. And because I’m teaching Teague right now, the policy issues surrounding retroactivity in the post-conviction context are generally on my mind.

These amendments are apparently the first that the Sentencing Commission has ever made retroactive. (An explanation is here.) The Department of Justice estimates that over 20,000 inmates will file requests for a reduced sentence. There are a host of issues that arise with the retroactivity of these amendments. (And as you might surmise, the fact that my husband is a federal prosecutor very much concerned about the on-the-ground implications of retroactivity affects the issues that I see.)

Practically, are the courts, prosecutors, probation departments, and marshals equipped to deal with a 25% increase in the number of sentencings performed? Is the defendant entitled to an in-person hearing, obligating the United States marshals to transport the defendant from prison to the court where the sentence was originally imposed and obligating the courts to appoint counsel if the defendant cannot afford one? Legally, what issues can be relitigated? Although the amended Guideline seeks to limit reconsideration only to the impact of the change in the crack-cocaine offense level, courts are not bound to follow that guidance. In light of the recent Supreme Court decisions in Gall and Kimbrough, can a district judge properly refuse to consider the other sentencing factors identified by the Court at the resentencing? If a prosecutor did not seek an otherwise applicable sentencing enhancement in reliance on the hefty Guidelines score resulting from the fact that the offense involved crack cocaine, is the prosecutor entitled to now seek application of that enhancement? Would a prosecutor still be bound by a provision in a plea agreement in which he agreed to seek a sentence at the low end of the applicable sentencing range, where the Guidelines setting that range have changed? If a defendant waived his appellate rights in a plea agreement, does that waiver still apply after the resentencing? Regardless of the impact of such a waiver, what appellate rights exist?

This retroactive change also underscores what seems to me an irony in the current federal sentencing regime. The courts must consider requests for new sentences based on amendments to the Guidelines, but because the Guidelines are not mandatory, the courts need not modify the sentences unless they so choose.

Does someone who knows more about this than I do have ideas about how the retroactive aspect of these amendments will be implemented?  Was retroactivity a wise call?