The first step to fair and efficient implementation of the retroactive amendment to the crack drug quantity guidelines is appointment of counsel, as has occurred in most Districts. Professor Berman reports this morning here
that some judges are refusing to appoint counsel for prisoners sentenced for crack crimes, leaving them to litigate for themselves against the Department of Justice’s cramped view of the sentencing judges’ discretion under 18 U.S.C. § 3582(c). During the hearings leading to the retroactive amendment, federal defenders, including myself, provided testimony before, during, and after the Sentencing Commission retroactivity hearings emphasizing the importance of counsel in assuring smooth administration and fair implementation of the amendment. Aside from administrative considerations, the complexities of the law and the need to consider new facts should require appointment of counsel. Background To Retroactivity Of The Crack Amendment
As reflected in the Sentencing Commission’s reasons for the amendment (here
), the amendment reducing the offense level by two for quantities of crack is only a partial remedy for the institutionalized over-incarceration resulting from the 100:1 powder/crack ratio. For the fourth time, the Commission has called for Congress to change the 100:1 ratio in the mandatory minimum statute; the Commission’s amendment is an intermediate step that only somewhat lessens the unnecessary incarceration by adjusting down the offense levels geared to drug quantity by two levels, pending congressional action on the ratio itself. Congress did not block the amendment, which became law on November 1, 2007.
Following the effective date of the amendment, the Commission requested comment on whether the amendment should be retroactive. Arizona Federal Public Defender Jon Sands submitted a letter on behalf of Defenders that included reference to the importance of counsel in smooth and fair implementation of the amendment (here
), which was elaborated in written submissions prior to the hearing (here
) and during the testimony (here
at 58-78). In response to Commissioner Steer’s request regarding the FPDs’ plans for implementing the amendment, we provided a post-hearing submission detailing the approach to identifying clients, obtaining representation, and litigating § 3582(c) motions (here
On December 11, 2007, the Commission voted to make the amendment retroactive. Along with retroactivity, the Commission provided commentary regarding implementation of the new guidelines. Attorneys need to parse the relevant statutes and the commentary to determine whether and to what extent commentary may be helpful or harmful to clients and whether adverse commentary conflicts with statutes or guidelines under Stinson
. The FPD Sentencing Resource Counsel and others have provided support regarding the complex legal theories for the wide spectrum of fact patterns qualifying for a potential reduction in sentence.
Counsel Under The Criminal Justice Act
case law makes clear that the District Courts have abundant discretion to appoint counsel under the Criminal Justice Act. We can hope that most courts will see the practical necessity of defense counsel. In the protocol the FPDs presented to the Commission based on the 1995 marijuana retroactive amendment, most cases were resolved with agreed dispositions negotiated between prosecutor and defender – in our District, 121 orders were signed on the first day the amendment became effective. This protocol would obviously be impossible without involvement of defense counsel: the prospect of prosecutors dealing with unrepresented prisoners would raise serious ethical questions. During the first appearance on the crack charges, the prisoner routinely requests to proceed through counsel. In the absence of a fully advised waiver, how can a prosecutor interact with an unrepresented prisoner regarding the judgment previously entered with counsel representing the prisoner?
Under the circumstances of the crack amendment, especially the complexity of the legal issues, the CJA statute should be construed as making appointment mandatory. Under 18 U.S.C. § 3006A(a)(1)(A), representation “shall” be provided to any financially eligible person charged with a federal felony. The § 3582(c) motion is under the same case number – the prisoner is charged with a federal felony, and this proceeding relates directly to quantum of punishment imposed under that judgment. And this is not mere discretionary leniency: the Commission has found that the original sentence was based on a guideline range higher than necessary to accomplish the purposes of sentencing, and Congress has required consideration of § 3553(a) factors in deciding the motion.Constitutional Dimensions To The Need For Representation
For those District Courts that express reluctance to appoint counsel for litigation of § 3582(c) motions, we can point out that, under the post-Booker
sentencing regime, the CJA should be construed to require appointment of counsel or the Constitution requires appointment based on at least three separate theories, each based in Supreme Court governing authority.
First, under the Due Process and Equal Protection Clauses, the 2005 case of Halbert v. Michigan
established that, even if there is no Sixth Amendment right to appellate review, Congress, having established an avenue for review, “may not ‘bolt the door to equal justice’ to indigent defendants.” In Halbert
, the state refused to appoint counsel for defendants who wanted to appeal from guilty pleas, including Mr. Halbert, who claimed “his sentence had been misscored” and that he needed counsel to correct the error. Justice Ginsberg, writing for the Court, held that basic fairness required appointed counsel based on the complexities of the law, the difficulties of litigating from prison, and the practical consideration that many prisoners are poorly educated, mentally ill, and otherwise ill-equipped to represent themselves. These same factors apply to § 3582(c) motions.
Second, under the Sixth Amendment, the previous cases regarding the right to counsel on § 3582(c) motions do not address key Supreme Court precedents and have been factually superseded by post-Booker
issues. In Mempa v. Rhay
, the Supreme Court held that Gideon
and its progeny “clearly stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” In Mempa
, the Court held that the Sixth Amendment right to counsel applied at a deferred sentencing proceeding. “Substantial rights” are at issue where the Commission has determined that the guideline range was greater than necessary and that a potential reduction of years of incarceration – the Commission estimates an average of 27 months – is at stake when the District Court decides the motion. And the Supreme Court recognized in Glover
, in evaluating an ineffective assistance of counsel claim based on Guidelines sentencing, the defendant establishes prejudice if there was any guideline error to the defendant’s detriment. Booker
also changed the legal context by eliminating the portion of the sentencing appeals statute making the Guidelines mandatory. In its place, the Supreme Court in Rita
outlined the necessary reasonableness review, which is predicated on a correct initial assessment of the applicable guideline range. Since Rita
, the Court in Gall
expanded on the sentencing judge’s authority to consider sentences outside the applicable range, again emphasizing the need for an initial correct determination of the Guidelines factors. Given the explicit reference in § 3582(c) to § 3553(a), the same considerations are in play in the resolution of a motion based on the new applicable guidelines range following the retroactive crack amendment. The post-Booker
cases emphasize the importance of establishing, in the first instance, correct calculations of the guideline range, which – for crack cases – is a new starting point but not necessarily the end point given the need to consider § 3553(a) factors.
The factual context for a Sixth Amendment analysis has also changed since Booker
. In that case, the Court held that the federal sentencing guidelines, as implemented in every District since 1990, violated the Sixth Amendment right to jury trial. Prospectively, the Court remedied the Guidelines’ unconstitutionality by severing aspects of the Sentencing Reform Act to make the Guidelines advisory. Booker
establishes that, for prisoners sentenced prior to January 12, 2005, the consideration of § 3553(a) factors required by § 3582(c) has never previously been undertaken. These factors, especially in light of Mempa
, militate in favor of appointment of counsel under the Sixth Amendment.
Third, under the Due Process Clause, even if § 3582(c) motions are not deemed a critical stage of a criminal prosecution under Mempa
, the balance of interests and risks of error require counsel as a matter of procedural due process. In the post-Booker
era, virtually no prisoner can competently litigate the § 3553(a) factors without the assistance of counsel. As Justice Ginsburg pointed out in Halbert
, prisoners suffer from a number of deficits that interfere with the ability to effectively advocate for themselves. On a motion to be decided based on § 3553(a) factors, the litigant would have to be conversant not only with the record at sentencing, not only with any intervening aggravating or mitigating factors, but also with the effects of Booker
, and Gall
. The motion to reduce, according to the new commentary, involves considerations of dangerousness and post-sentencing conduct that require investigation by counsel to address, and, if necessary, to rebut prosecution arguments based on these factors. With an average of over two years at stake, and no countervailing legitimate interest in a sloppy and incomplete presentation to the court, the balance of interests would require counsel under the standard articulated in Gagnon v. Scarpelli
:counsel is required if the reasons for a mitigated disposition “are complex or otherwise difficult to develop or present.” Counsel Is Essential For Fair Implementation Of The Crack Guidelines
The balance of interests, especially given the length of incarceration at issue and the complexities of the federal Guidelines system, require counsel’s involvement to assure efficient implementation of the retroactive amendment and basic fairness to the individual prisoner. Based on discretion, most District Courts are appointing counsel because, as noted in Halbert, counsel’s involvement, by making applications easier to comprehend and more efficient, is helpful both to defendants and to the courts. The FPD’s Sentencing Resource Counsel have addressed counsel issues and, with potential assistance from volunteers on the Criminal Justice Act panel, Defenders should be prepared to litigate, if necessary, the appropriateness of counsel’s participation, both on statutory and constitutional grounds. As Judge Barbara Lynn from Dallas told the Detroit Free Press, “The government is represented by counsel; I’m making sure the defendant has counsel, too.”
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon