Its a sign as to how far Right the needle has moved that we celebrate a decision that shouldn’t have been a decision at all. Is there even one reason at all that a sentient human could suggest to deny retroactivity?
Keith, Holder proposed to categorically *preclude* retroactive application of the amendments to defendants with a criminal history category above III, or who had any firearm enhancement. It’s a difficult position to understand since, one, those factors still figure in the revised guideline calculation, and two, district judges have discretion not to grant the reduction.
Just to be clear, the argument for retroactivity isn’t quite a laydown, even in the context of an absurd rule such as the five-years-for-five-grams mandatory. The problem is that some existing sentences reflect plea bargains.
For example, imagine someone caught dealing five grams of crack who also had a firearm. The defense lawyer offered a plea to the drug charge in return for having the gun enhancement dropped, and the Assistant U.S. Attorney agreed because five years seemed like an adequate punishment given the offender’s criminal history.
Now the mandatory goes away. Should the defendant walk? Not obvious.
So it’s not quite fair to attribute ill will or irrationality to anyone who opposes making a sentencing change retroactive.
But judges can take plea agreements vel non into consideration. Aside from which, fact, charge and sentencing bargaining aren’t confined to the proposed class of prohibited cases. So, again, it’s hard to see any good policy justification for taking discretion away from judges in this way. (The political justification, on the other hand, I roughly understand.)
AG Holder testified at the commission in favour of retroactivity
Its a sign as to how far Right the needle has moved that we celebrate a decision that shouldn’t have been a decision at all. Is there even one reason at all that a sentient human could suggest to deny retroactivity?
Keith, Holder proposed to categorically *preclude* retroactive application of the amendments to defendants with a criminal history category above III, or who had any firearm enhancement. It’s a difficult position to understand since, one, those factors still figure in the revised guideline calculation, and two, district judges have discretion not to grant the reduction.
Michael: He did do that, he also testified that everyone else should get a retroactive reprieve.
I should have said “also.” My point was that he didn’t testify in favor of retroactivity simpliciter.
Just to be clear, the argument for retroactivity isn’t quite a laydown, even in the context of an absurd rule such as the five-years-for-five-grams mandatory. The problem is that some existing sentences reflect plea bargains.
For example, imagine someone caught dealing five grams of crack who also had a firearm. The defense lawyer offered a plea to the drug charge in return for having the gun enhancement dropped, and the Assistant U.S. Attorney agreed because five years seemed like an adequate punishment given the offender’s criminal history.
Now the mandatory goes away. Should the defendant walk? Not obvious.
So it’s not quite fair to attribute ill will or irrationality to anyone who opposes making a sentencing change retroactive.
But judges can take plea agreements vel non into consideration. Aside from which, fact, charge and sentencing bargaining aren’t confined to the proposed class of prohibited cases. So, again, it’s hard to see any good policy justification for taking discretion away from judges in this way. (The political justification, on the other hand, I roughly understand.)