Putting the lie to DOJ fear mongering that the crack retroactivity amendment will put thousands of violent criminals prematurely back on the streets, the judge in United States v. Wood, 88 CR 0723 (CPS), 2008 WL 399253 (E.D.N.Y. February 12, 2008), (a previous order of which is discussed here) issued a thoughtful decision ordering a deportable inmate's release on March 3, 2008, the effective date of the amendment.  Reducing Wood's base offense level by two points and applying the same downward departure of 9.6 percent imposed at the time of Wood's previous sentencing, the court found Wood eligible for release on March 3 (approximately three months earlier than Wood's original projected release date).  The court said the following about Wood's potential threat to the community: "Releasing Wood on March 3, 2008 does not pose a threat to the community. He will be immediately transferred to DHS custody and has previously consented to his removal from the country. Moreover, he has maintained good conduct and no disciplinary action has been taken against him during his entire period of incarceration [almost nineteen years]."

Two judges, one in the SDNY and one in the EDNY, have taken immediate action in cases affected by the reduced crack guideline, made retroactive by the Sentencing Commission on December 11, 2007. 

In United States v. Wood, 88 CR 723 (CPS), 2008 WL 163694 (E.D.N.Y. 2008), the court ordered the government to state its position on the defendant's eligibility for resentencing by January 22, 2008, and produce the defendant in its courtroom on February 4, 2008.  Rejecting the government's argument that the motion is premature and should not be addressed until March 3, 2008 (when the retroactive policy goes into effect), the court pointed out that since "Wood is likely to qualify for resentencing to a term of imprisonment that expires on March 3, 2008, thereby making him eligible for release on that date," early consideration of his motion for a reduced sentence is necessary to avoid "the irreparable harm that would result to him if he were to remain incarcerated for a longer period of time than necessary."

Similarly, in United States v. Polanco, 02 CR 442 (GEL), 2008 WL 144825 (S.D.N.Y. 2008), the court announced its intention to grant a two-level reduction to a defendant previously sentenced to 87 months imprisonment for crack conspiracy, a sentence, the court noted, that was "entirely attributable to the severity of the crack guidelines." 

The court in Polanco, interestingly, questions the validity of the Commission's efforts to limit the resentencing process authorized by the retroactive policy, in particular, the instruction that the new sentencing would "not constitute a full resentencing of the defendant," and prohibiting a reduction to a sentence “that is less than the minimum of the amended guideline range.”  The Polanco court notes: "The effectiveness of these limitations is yet to be tested; it would be, to say no more, ironic if the relief available to a defendant who received a sentence that is now recognized to have been unconstitutional because imposed under mandatory guidelines based on non-jury fact findings and unwise because the guideline under which he was sentenced was excessively severe, can be limited by a still-mandatory guideline."

The court did not need to address those issues, however, since the authorized two-point adjustment would render Polanco eligible for release within weeks of the March 3, 2008 effective date.

Stay tuned for cases where these limitations will be tested.