Retroactivity of Crack Amendment

Initial Guidance to CJA panel Representatives

December 19, 2007

            By now you are all aware that the Sentencing Commission voted unanimously to make the crack amendment retroactive effective March 3, 2008. Along with this comes a new version of Guideline 1B1.10 which is the policy statement on resentencing after a retroactive amendment. A copy is attached.

            Defender Services has created a Working Group to collect and share information on how to maximize the benefit for clients. We will be sharing these ideas with Panel Attorneys through the District Panel Representatives and your Federal Defender. Materials will also be posted at www.FD.org.

A.        Identifying Eligible Clients

We expect the Sentencing Commission to be providing the Court a list of those defendants who appear eligible. While the Commission has given projections on potential numbers of eligible defendants, and will soon be sharing that information with the courts, we do not yet have a date for when the courts will get the names, nor do we know how each court will proceed. The Commission generated list will be a starting point, but individual attorney file research may be needed at some point. Stay in touch with your Defender as they will have local knowledge.

B.        Getting Appointed

We believe all potentially eligible defendants have a right to counsel, Mempa v. Rhay, 389 U.S. 128 (1967). Districts appoint counsel in different ways so again, coordinate with your Federal Defender on how appointments will be made in your District. Panel Representatives should discuss with the Defender having a joint meeting with the Court on the local appointment process.

C.        Potential Immediate Release Cases

Some defendants will be eligible for immediate release. Discuss with your Defender a process for handling such cases. There are materials that are circulating in the Defender community. In some districts a phone call to an AUSA will result in a “no objection” order that can be submitted to the Court. In other Districts the government objects to any action before March 3, 2008.

D.        Method of Filing Motion under 18 U.S.C. §3582(c)(2)

Districts will vary on how to start the process. Discuss a plan with your Defender then see if there is agreement at the court. If possible, have your Defender set up a meeting with the Court, Probation and the Government so your panel will know the areas of agreement and disagreement on the process.

E.        Additional Guidance

On January 16th to 18th in Charlotte, N.C., a “Retroactivity Summit” is planned for the 30 districts with the largest number of affected inmates. Attendance will include probation, defenders, US Attorneys and the Chief Judge from each of the 30 districts as well as Commission staff. We will share the lessons learned at the Summit.

F.        Getting Paid

If you do individualized client work between now and the actual date of appointment, keep track of time by client, then when appointed ask to be appointed nunc pro tunc to the date you began the work for that specific client. We expect the case maximum is $1,600, the remand re-sentencing amount.

G.       Calls or Letters from Prison or Families

If you get calls or letters from prison or families, consider sending them a CJA 23, financial affidavit to complete and return. This will allow you to seek appointment. (we can modify to use Miriam’s form but that has client writing directly to the Court). Consider suggesting families look to FAMM as a support group, see www.FAMM.org

H.       To Do Now

1. Contacted your Federal Defender and set up a meeting to discuss a plan for handling retroactivity resentencing in your district.

2. Communicate the relevant portions of this e-mail with your panel.

            3. Be a frequent visitor to www.FD.org for updates, and remind your panel of this resource.

We will keep you informed as information becomes available and will be addressing the issue at the National Panel Representative Conference in New Orleans, March 8 and 9, 2008.