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The retroactive application of the U.S. Sentencing Commission’s cut in crack cocaine sentencing rules began on March 3, allowing some inmates to walk out of prison that day, but for thousands of more complex cases the process may not be so easy. Unresolved legal issues as well as differing approaches by judges to the sentence rollbacks could spawn plenty of litigation, according to federal public defenders around the country. The commission agreed last year to a 12- to 24-month rollback of potential crack sentences to ease the disproportionate, 100-to-1 ratio of prison time imposed for crack versus powder cocaine. The commission applied that change retroactively beginning March 3, affecting as many as 19,500 prisoners nationally. Among the issues so far: Whether inmates sentenced years ago get the benefit of other new rules that might reduce their sentences further; whether attorneys should be appointed for indigent prisoners; and whether judges should reject anomalies in the new penalty ranges that produce no sentence change in some cases. The commission’s new table of sentence ranges produced “bad math” that inadvertently leaves some people with the exact same sentence, even though that was not the intent, according to Amy Baron-Evans, the national Sentencing Resource Project counsel in the Federal Public Defenders Office in Boston. “That one is a big issue and very unfair,” she said. Baron-Evans noted that two federal judges in Tennessee and Maine have found the table produces an “irrational result,” and opted to reduce the sentences. U.S. v. Watkins, 2008 WL 152901 (E.D. Tenn.), and U.S. v. Horta, 2008 WL 445893 (D. Maine). Additional reductions in dispute Some defense lawyers argue that inmates sentenced years ago are entitled to benefit from additional reductions based on new rules not in place at the time of the original sentencing. The Sentencing Commission, in a policy statement, and the Justice Department have maintained that judges should not go beyond the commission’s two-level adjustment. Only the 9th U.S. Circuit Court of Appeals has held that judges may take new rules into account, broadening potential resentencings. U.S. v. Hicks, 472 F.3d 1167 (2007). Most circuits have not confronted the question, although the 4th Circuit rejected that position in an unpublished order. U.S. v. Hudson, 242 Fed. Appx. 16 (2007). Also, a trial judge in Maine has rejected the position. U.S. v. Poland, 2008 WL 312151 (D. Maine). “We will be urging the courts not to go beyond the limited reduction that the Sentencing Commission has asked for and not to resentence defendants from scratch,” said Laura E. Sweeney, Justice Department spokeswoman. “The law of this circuit is that we can and are seeking more reduction than two levels,” said Sean Kennedy, federal defender in Los Angeles. Kennedy did note that the entire 9th Circuit has just 600 eligible cases, compared with nearly 6,000 in the 4th Circuit. “Whatever the Sentencing Commissions may say about the scope of the resentencing, like Pandora’s Box, once it is open it is fully open,” said Michael Nachmanoff, the public defender in Alexandria, Va. “I anticipate that many circuits will address it promptly,” he said.

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