In an overdue, welcome and wise move yesterday, President Obama commuted the sentences of 46 federal inmates, who had been convicted of drug offenses. There is widespread coverage of the commutations, which terminate an individual's sentence but do not erase the conviction, at the New York Times, Washington Post and USA Today among others. A list of the commutations can be found here.
Reform of the federal criminal justice system is badly needed as reported in a number of previous posts; federal judges have sounded the call and two Supreme Court Justices, Anthony Kennedy and Stephen Breyer, characterized the criminal justice system as "broken" in testimony to Congress earlier this year. See Injustice & Mandatory Minimums - One Judge's Story; Criminal Justice System Broken, Say Two Supreme Court Justices; Unjust Sentencing Guidelines and Ineffective Assistance of Counsel; "Injustices That Are Going on Every Day in the Federal Courts"; The Armed Career Criminal Act (ACCA) "undercuts public confidence in our national commitment to a fair and equitable criminal justice system"; Racial Disparities in the Criminal Justice System: A Chart; and America Has More Prisoners Than China.
There are three reforms that should occur immediately. First, the Fair Sentencing Act of 2010 should be fully retroactive, and the sentences of all persons convicted under the law's prior incarnation, which imposed a mandatory minimum sentence of 5 years for possession of 5 grams or more of crack cocaine, accordingly adjusted. This would result in the release of a few prisoners that have already served far longer than they would under the current law. This change is particularly important, because a major impetus for the Fair Sentencing Act was to correct racial disparities inflicted by the prior law.
Second, the current law that equates an infant marijuana plant, whether male or female, with a kilogram of finished, packaged marijuana should be changed. An infant marijuana plant does not have anywhere near the same commercial value of a finished, ready-for-sale kilo of marijuana. An infant male marijuana plant has no or virtually no commercial value. Law should have some connection to reality.
Third, there should be greater opportunities for federal district judges to determine that a mandatory minimum sentence should not be applied. This ability would be rarely exercised, I expect, but would allow some injustices not to occur.
Robert L. Abell
www.RobertAbellLaw.com
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