8/7/2019 2011 01 18 Ltr to AGHolder on Crack Sentencing

1/2

OfficersInterim ChairpersonJudith L. Lichtman

National Partnership for Women&Families

Vice ChairpersonKaren K. NarasakiAsian American Justice Center

SecretaryBarry RandAARP

TreasurerLee A. SaundersAmerican Federation of State,County & Municipal Employees

Executive CommitteeBarbara Arnwine

Lawyers Committee ForCivil Rights Under Law

Arlene Holt BakerAFL-CIO

Marcia GreenbergerNational Womens Law Center

Linda D. HallmanAmerican Association ofUniversity Women

Mary Kay HenryService EmployeesInternational Union

Andrew J. ImparatoAmerican Association of Peoplewith Disabilities

Benjamin JealousNAACP

Michael B. KeeganPeople For The American Way

Floyd MoriJapanese American CitizensLeague

Marc H. MorialNational Urban League

Janet MurguiaNational Council of La Raza

Debra NessNational Partnership for WomenAndFamilies

Terry ONeillNational Organization for Women

Jacqueline Johnson Pata

National Congress ofAmerican Indians

John PaytonNAACP Legal Defense andEducational Fund, Inc.

Dennis Van RoekelNational Education Association

Anthony RomeroAmerican Civil Liberties Union

Thomas A. SaenzMexican American Legal Defense& Educational Fund

David SapersteinReligious Action Center forReform Judaism

Shanna L. SmithNational Fair Housing Alliance

Joe SolmoneseHuman Rights Campaign

Randi WeingartenAmerican Federation of Teachers

Mary G. WilsonLeague of Women Voters

Sara Najjar-WIlsonAmerican-Arab Anti-Discrimination Committee

Compliance/EnforcementCommittee ChairpersonKaren K. NarasakiAsian American Justice Center

President & CEOWade J. HendersonExecutive Vice President & COOKaren McGill Lawson

January 18, 2011

The Honorable Eric Holder

Attorney General

Department of Justice950 Pennsylvania Ave., NW

Washington, DC 20530

Dear Attorney General Holder:

On behalf of The Leadership Conference on Civil and Human Rights, a diverse coalition of

more than 200 national organizations charged with promoting and protecting the rights of all

persons in the United States, we urge you to issue guidance instructing all federal prosecutorsto apply the modified mandatory minimums in the new Fair Sentencing Act of 2010 to all

defendants who have not yet been sentenced, including those whose conduct predates the

legislations enactment.

The passage of the FSA was a watershed moment in the move toward fairness in criminal

sentencing and in the effort to correct a long standing wrong. Your leadership and support

for the FSA were not only crucial to its passage, but also conveyed the need for immediate

action. As you noted last year when testifying before the Senate, the stakes are simply toohigh to let reform in this area wait any longer.1 We agree.

When Congress passed the FSA, it did so with the intention of restoring fairness to federal

cocaine sentencing. To that end, Congress granted the U.S. Sentencing Commissionemergency authority in the new law to promulgate the guidelines, policy statements, or

amendments provided for in this Act as soon as practicable2 precisely because there was

widespread agreement that the old regime constituted an intolerable injustice that needed to

be remedied immediately. On October 21, 2010, the Commission acted on that emergency

power by issuing a temporary amendment to account for the changes in the penalty structurethat went into effect on November 1, 2010.

All of this would lead us to think that the Justice Department would work with some urgency

to prosecute crack offenders along the new guidelines consistent with the remedial purpose of

the Act. But to our dismay, Assistant U.S. Attorney Michael J. Conley recently argued in

court that it was the Justice Departments policy, and not simply a matter of prosecutorial

discretion, to apply the old mandatory minimums to all future prosecutions and sentencingbased on pre-August 3, 2010, conduct.3

1Holder, Eric. Statement to the United States Senate, Committee on the Judiciary. Oversight of the

Department of Justice, Hearing, November 18, 2009.2Fair Sentencing Act of 2010 (PL 111-220, August 3, 2010)

3U.S. v. Douglas, _F. Supp.2d _, 2010 WL 4260221 (D. Maine, October 27, 2010) (Hornby J.) at 2,9

and FN 29.

8/7/2019 2011 01 18 Ltr to AGHolder on Crack Sentencing

2/2

Page 2 of 2

January 18, 2011

Judge D. Brock Hornby, an appointee of President George H.W. Bush, who presided over United States

of America v. Douglas, rightly took issue with this policy decision and noted the potentially absurd

consequences of doing so.4In his opinion, Judge Hornby wrote, What possible reason could there be to

want judges to continue to impose new sentences that are not fair over the next five years while thestatute of limitations runs? I would find it gravely disquieting to apply hereafter a sentencing penalty

that Congress has declared to be unfair.5

As Attorney General, you are well within the bounds of your authority to issue such guidance since there

is ample precedence for producing various memoranda addressing Department policies with respect to

charging, case disposition, and sentencing. Shortly after the constitutionality of the Sentencing Reform

Act was sustained by the Supreme Court in 1989, Attorney General Richard Thornburgh issued a

directive to federal prosecutors to ensure that their practices were consistent with the principles of equity,

fairness, and uniformity.

Several years later, Attorney General Janet Reno issued additional guidance to address the extent to which

a prosecutors individualized assessment of the proportionality of particular sentences could be

considered. The recent passage of the FSA emphatically reaffirms Congress intention that crackdefendants are entitled to fair treatment. It makes no sense to apply punishment differentially for

defendants whose conduct occurred a few days apart.

For these reasons, we call upon you to issue new guidance to all Justice Department prosecutors that

closely follows the Congressional intent behind the Fair Sentencing Act of 2010 found in the legislative

history surrounding its passage. Such guidance necessarily entails seeking sentences consistent with the

Acts reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when

their conduct took place.

Thank you for your consideration. If you have any questions, please contact Lisa Bornstein, Senior

Counsel, at (202) 263-2856, or Nancy Zirkin, at (202) 263-2880.

Sincerely,

Wade Henderson Nancy Zirkin

President & CEO Executive Vice President

4Several other district courts have agreed, relying on Judge Hornbys opinion, see e.g., United States v. Johnson,

No. 6:08-cr-270 (M.D. Fla. Jan. 4, 2011) (Presnell, J.); United States v. English, No. 3:10-cr-53 (S.D. Iowa Dec. 30,

2010) (Pratt, J.) ; United States v. Gillam, No. 1:10-cr-181-2 (W.D. Mich. Dec. 3, 2010) (Neff, J.); United States v.

Jaimespimentz, No. 09-cr-488-3 (E.D. Pa. Nov. 24, 2010) (Baylson, J.); United States v. Angelo, Crim. No. 09-202

RWZ (Oct. 27, 2010) (Zobel, J.); United States v. Jones, No. 4:10 CR 233 (N.D. Ohio Jan. 3, 2011) (Dowd, J.);

United States v. Favors, No. 1-cr-00384-LY-1 (W.D. Tex. Nov. 23, 2010) (Yeakel, J.).5Douglas, _F. Supp.2d _, 2010 WL 4260221 (D. Maine, October 27, 2010) (Hornby J.).