Crack Cocaine Sentencing

Last August President Obama signed the Fair Sentencing Act.  The Act reduced the mandatory minimum penalties for crack cocaine trafficking, and eliminated the mandatory minimum sentence for crack cocaine possession.  The Act also raised the quantity required, involved with manufacturing or trafficking crack cocaine, to initiate the minimum imprisonment terms for 5 and 10 years.  Finally, the Act directed the U.S. Sentencing Commission to review and amend federal sentencing guidelines in order to better account for offender culpability regarding aggravating and mitigating circumstances in drug trafficking. 

On April 6^th the Sentencing Commission released its amendments covering the above-mentioned sentencing guidelines.  Now, the guidelines will focus on offender culpability rather than drug quantity.   The change is estimated to reduce sentences of crack cocaine offenders and reduce the cost of incarceration of such offenders. 

Not until June 1 will the Commission consider whether these changes will apply retroactively (past conduct for possible offenses).  The Fair Sentencing Act itself is silent on the retroactivity of its implication, thus implying that the Act only applies to offenses which occurred on or after the date of enactment.  

Brief overview of Jessica's Law in KS and potential consequences

In 2006, then Governor, Kathleen Sebelius, signed into law a sex offender statute known as "Jessica's Law."  Such statutes are popular across the nation and originated in Florida after Jessica Lunsford was raped and murdered by a previously convicted sex offender. 

Jessica's Law applies to a defendant, 18 years and over, who has been convicted of aggravated indecent liberties, or attempt to commit aggravated indecent liberties, with a child under the age of 14.  Such a defendant is mandatorily sentenced to a minimum of 25 years imprisonment.  However, if the defendant is a habitual sex offender, then the mandatory sentence is imprisonment for life, without the possibility of parole. 

And yet, the "mandatory" rule is not so "mandatory," because mitigating circumstances allow a judge to use discretion and reduce the sentence.  Some mitigating circumstances include: a clean slate (no prior criminal activity), defendant was under extreme mental/emotional disturbance or distress due to domination by another person, the age of the defendant at the time of the crime.

Last month, in State v. Floyd, 2011 WL 923936 (Kan. Mar. 18, 2011), the Supreme Court affirmed the district judge’s discretional sentencing of the defendant to 55 months.  The district court departed from the 25 year sentence because of “Floyd’s lack of criminal history; letters written supporting him; Floyd’s mental health problems; the nature of the offense; the recommendations of the parties; and the apparent harm to the victim being, at least it appears to be less than is normally associated with the crime of this nature.”  Id. at 2.

The Sixth Amendment's Confrontation Clause

    The Sixth Amendment's Confrontation Clause protects criminal defendants with the right "o be confronted with the witness against him."  Sixth Amendment.  Typically, this right is recognized with cross-examination of a witness whose testimony is being used in the prosecution of a criminal defendant.  In February the Supreme Court further defined the clause with a 6-2 decision in Michigan v. Bryant, No. 09-150 (U.S. Feb. 28, 2011) (Sotomayor). 

     In Bryant, a wounded victim gave a statement to the police as to who shot him.  This testimony was later used to prosecute the criminal defendant Bryant.  Bryant argued that the testimony was hearsay, and should not have been allowed to enter evidence at trial.  The Supreme Court did not agree.  Justice Sotomayor wrote that distinction can be made between situations of ongoing emergency and investigation.  When the statement is presented with a primary purpose to aid police in an emergency situation the statement is non-testimonial, and thus admissible at trial without the requirement of cross-examining the witness.  This rule is especially significant when, as in Bryant, the victim has died.  However, when testimony is given during police investigation after the emergency has dispensed the primary purpose changes to prosecution of a criminal defendant.  Thus, the Confrontation Clause requires prosecutors to allow the cross-examination of their testimonial witnesses.