U.S. v. Jones: Decision Declaring Use of GPS Tracking a Search Leaves Some Unanswered Questions

On January 23, 2012, the United States Supreme Court unanimously held that the attachment of a Global Positioning System (GPS) device to a vehicle utilized to monitor a vehicle’s movements on public streets and obtain data for investigative purposes constitutes a “search” under the Fourth Amendment of the United States Constitution.  Justice Scalia delivered the opinion of the Court, stating that in this case, “the government physically occupied private property for the purposes of obtaining information.” 

In this case, the government (joint investigation conducted by FBI and Metropolitan Police Department) obtained a search warrant to install a GPS tracking device on the car Jones drove, but was registered to his wife.  Eleven days after the warrant expired, the government actually attached the GPS tracker to Jones' vehicle in the state of Maryland, and not the District of Columbia where the warrant was obtained.  The government tracked the vehicle for twenty-eight days and produced over two thousand pages of data.  Jones was subsequently indicted for drug trafficking conspiracy charges.  In a motion to suppress the evidence obtained from the surveillance, the District Court suppressed the GPS data obtained while the vehicle was parked at Jones’ residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when Jones drove the vehicle on public streets.  Jones was convicted and the D.C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.   

               

Justice Scalia opined, the Fourth Amendment was tied to common law trespass until the middle of the twentieth century when the Court declared in Katz v. U.S. that the Fourth Amendment protected “people, not places.”  To determine whether a search within the meaning of the Fourth Amendment occurs, the Court has applied the test articulated in Justice Harlan’s concurrence Katz, which states.  According to this test, the governmental activity must offend an individual’s manifestation of a privacy interest, and the privacy interest invaded must be one that society is prepared to accept as reasonable or legitimate.

The government in U.S. v. Jones, argued that under Katz, no search of the vehicle occurred since Jones had no reasonable expectation of privacy in the area of the underbody of the vehicle accessed by the government agents nor the public roads of which the vehicle traveled on which were visible to all.  The Court decided to not entertain the government’s contentions, explaining that Jones’ Fourth Amendment rights “did not rise or fall with the Katz formulation.”  Instead, the Court found it necessary to look at the case historically and what the Fourth Amendment first set out to protect – “persons, houses, papers and effects” – with a deeply rooted concern of the government’s trespass upon those areas.  The Court expressed that Katz did not narrow the Fourth Amendment scope; rather, it elaborated in circumstances where a physical trespass had not occurred. 

Justice Sotomayor concurred and agreed with the majority that a violation of the Fourth Amendment occurred.  She explained that Katz enlarged the scope of the Fourth Amendment, but did not diminish the trespasser analysis.  Justice Sotomayor further stated that in a future case, it might be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. 

Justice Alito concurred, along with Justice Ginsburg, Justice Breyer, and Justice Kagan, but disagreed with the majority’s analysis of the issue, and expressed that the majority was ironically analyzing a twenty-first century surveillance technique using eighteenth-century tort law.  Justice Alito proposed that the analysis focus on whether Jones’ reasonable expectation of privacy was violated by the long-term monitoring of the movements of his vehicle.  Justice Alito’s question of how the majority’s approach would protect individuals if the federal government required or persuaded auto manufacturers to include a GPS tracking device in every car shows the Court’s split in reasoning. 

It seems the majority’s ruling leaves unanswered questions in the minds of citizens and law enforcement officials alike.  The majority’s focus of trespass leads one to question what happens when the government’s intrusion to access information involves no physical trespass.  A large amount of surveillance techniques utilized by government agents encompass no physical contact.  There are multiple issues which are not discussed in the opinion, that are likely to arise as a result.  First is the issue regarding exigent circumstances.  Should an exigent circumstance arise, will the government have to obtain a search warrant to track the movements of the suspect?  Time constraints in an exigent circumstance do not always allow for a warrant to be issued thus placing law enforcement behind in resolving a critical situation.   A second issue will likely arise when a government agent obtains a search warrant for the use of a GPS tracking device on a vehicle through a State.  Will the monitoring have to cease if the vehicle leaves the state in which the warrant was obtained?  Typically, search warrants obtained at a state level involve activity within that specific jurisdiction.  Lastly, since this ruling applies retroactively, what happens to all the criminal defendants convicted with the use of a warrantless GPS tracking?  If such criminal defendants’ defense attorneys did not raise the issue at trial, the issue is not appealable.  It seems this decision will bring much litigation, with new precedent to be set.  Meanwhile it leaves the government in a guessing game of what to do in cases of exigency where technology is the only way to track the movements of the suspect.

Diana Cobo

Blogger, Criminal Law Brief

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U.S. In Iraq: Marine’s Sentence Reduced from 152 Years to a Pay Cut

Concluding a six-year investigation into the killings of two dozen Iraqi civilians in Haditha, Iraq, on Tuesday, January 24, 2012 United States Marine Corps Staff Sergeant, Frank Wuterich, plead guilty to one count of negligent dereliction of duty.  He was sentenced to ninety days imprisonment, but agreed to a plea deal that allowed him to avoid jail time.  While seemingly arbitrary and unjust to some, the plea is a reminder of the difficult and split-second decisions servicemen and women face on a day-to-day basis while in combat overseas.

On November 19, 2005, Wuterich, squad leader assigned to third Battalion, first Marine Regiment, first Marine Division, was moving his patrol unit through Haditha, an insurgent stronghold where armed resistance fighters hid among the general population.  An improvised explosive device exploded under a vehicle, killing one Marine and injuring two others.  Wuterich and his team stormed the houses nearby, under orders to “shoot first and ask questions later.”  After a forty-five minute ordeal, twenty-four civilians, including ten women and children, were killed.

Wuterich originally faced 152 years in prison on nine counts of involuntary manslaughter, two counts of assault with a deadly weapon and three counts of dereliction of duty.  Prosecution in the case accused Wuterich of seeking revenge, while Defense attorney, Neal Puckett, argued that Wuterich only meant to protect his fellow Marines in an “honorable and noble” act.

As the investigation progressed, it became clear that the prosecution had holes in their case.  The prosecution encountered conflicting evidence and testimony, and some hypothesized that Wuterich was taking the fall for higher-ranking officers and officials, as this was his first time in combat.  Charges were reduced, and Wuterich eventually pled guilty for one count of dereliction of duty.  The military judge, Lieutenant Colonel David Jones, recommended the maximum sentence of three months imprisonment;  however, after reviewing the contents of the plea deal between Wuterich and the prosecution, he instead demoted Wuterich to the rank of private.  Charges against six other Marines involved in the incident were dropped and another was acquitted.  

Khalid Salman, head of the Haditha local council, hoped that the soldiers would “receive fair punishment” but is “now convinced that the judicial system in America is unjust.”  He stated that they will pursue legal action against the soldiers through the international courts.  On his Facebook account, Kurdish lawmaker, Mahmoud Othman, pled to “the human right organizations and (nongovernmental organizations) in America and all over the world to strongly condemn this verdict.  Iraqi blood isn’t so cheap.”

Wuterich issued a statement apologizing to the families of the victims and emphasized that “it was never my intention to harm you or your families.  I know that you are the real victims of Nov. 19, 2005.”  Although he pled guilty on one count, Wuterich stressed that the purpose of the squad’s actions were to secure the area, not harm civilians and that his plea should not be considered a concession of erroneous actions on behalf of the platoon.

It is difficult to validate the death of twenty-four innocent men, women, children and elderly.  However, it is also crucial to keep in mind the circumstances under which the incident occurred. Wuterich and his men were in hostile territory immediately after a car bomb detonated and killed a member of his team.  Although Marines are trained to handle stressful and emergency situations, Wuterich was forced to make a split second decision aimed at securing the safety of his men.  He made the decision he thought was necessary, and while the lives of one group of people cannot be held at a greater value than those of another, Wuterich took action he thought was best.

Elena Gekker

Blogger, Criminal Law Brief

Beyond Psychological Trauma to Murder

Last week, Joran Van der Sloot confessed to the murder of Peruvian, Stephany Flores.  He was the prime suspect of the 2005 disappearance of American teenager Natalee Holloway while she was vacationing in Aruba.  He fled to Lima, Peru after being investigated for the Holloway disappearance and he met Flores at a casino. He murdered Flores exactly five years after Holloway’s disappearance once he found her reading on the internet about Holloway’s investigations he was involved with. Flores was found strangled on May 31, 2010 in Van der Sloot’s hotel room.

On January 11, 2012, Van der Sloot claimed he was “truly sorry” and that he had “wanted from the first moment to confess sincerely” for the murder, yet it is the first time he did after over a year and a half.  He hoped that his sincere apology would allow the court to give him leniency and not give him the thirty year maximum sentence.  In fact, on January 13, the Peruvian court only reduced the maximum sentence by two years awarding him twenty-eight years to be served.  Due to his time served his sentence will last until June 10, 2038, when Van der Sloot is fifty years old.  It is reported that he was in disbelief of the sentence, as if his “sincere apology” would help resolve the brutal murder of Flores.

Van der Sloot’s lawyer even stated to the court that Van der Sloot murdered Flores because of “extreme psychological trauma” he endured because he was a prime suspect in the Holloway case.  It is impressive how Holloway’s murder investigations could traumatize Van der Sloot when his acts murdered a woman who was curious about learning of the investigations.  It seems like quite the stretch to express that extreme psychological trauma would cause one to murder an innocent victim especially when he repeatedly gave conflicting stories to law enforcement about his involvement with Holloway.

Prior to sentencing Van der Sloot was held in the Castro Castro prison where it is reported that he had access to Internet, television, and cell phone usage.  Luckily, he will no longer be receiving these luxuries at high-security Piedras Gordas penitentiary in northern Lima where he has recently been transferred.  Psychological trauma or whatever he may choose to claim, he murdered Flores and will serve his sentence accordingly in Peru.

Monica Trigoso

Editor-in-Chief, Criminal Law Brief

A Hidden Crimmigration Lesson Courtesy of Judulang v. Holder

The recent Supreme Court decision in Judulang v. Holder was a narrow but welcome victory among immigration advocates.  It unanimously rejected the Board of Immigration Appeals (BIA) approach to determining whether to grant discretionary relief from deportation.

More to the point, Judulang is instructive because it sheds more light on the complexity of the intersection of criminal law and immigration, also known as crimmigration.  The immigration consequences of criminal violations have become increasingly important after Padilla v. Kentucky.  There, the Supreme Court held that criminal defense attorneys have an affirmative duty to warn non-citizen defendants about deportation consequences.  This duty cannot be taken lightly when non-citizens constitute 47.5 percent of offenders in the federal system and almost 97 percent of all federal convictions result from guilty pleas.  Among non-citizens, the guilty plea rate is even higher (99.2%).

The Judulang Court took a different path than Padilla, but the morals of the stories are essentially the same: the most effective representation of non-citizen criminal defendants should involve early consultation with immigration attorneys.  A brief overview of Judulang helps illustrate the point.  After living in this country as a lawful permanent resident for approximately fifteen years, Mr. Judulang was involved in a fight in which someone else shot and killed the victim.  Mr. Judulang pleaded guilty and was convicted as an accessory to voluntary manslaughter in 1988.  Seventeen years later in 2005, Mr. Judulang pleaded guilty to a second crime involving theft.  The later incident triggered an investigation by the Department of Homeland Security (DHS), which had the option of charging Mr. Judulang with deportability based on the older 1988 conviction, which is is exactly what DHS did.  Consequently, Mr. Judulang was then designated as an aggravated felon, a distinction making deportation nearly inevitable. 

Mr. Judulang argued on the grounds that drastic amendments to immigration law since the time of his conviction had not only changed the applicable rules, but also the relief available to him.  Although he was not wrong, an immigration judge issued a deportation order which was affirmed by the BIA using the “comparable grounds approach” ultimately rejected in this case.

The dangers of plea bargaining are well-known within the criminal justice system, and the issue deserves no less attention in the immigration context.  In Judulang, there was a clear incentive to plead guilty for the first offense.  Mr. Judulang’s six-year sentence was suspended and he was immediately released.  Yet, had the Supreme Court upheld the BIA’s approach as most circuits had, Mr. Judulang would have been deported as an aggravated felon unable to ever lawfully re-enter the United States.  With facts like this, it is entirely possible that a defendant would prefer to serve a finite period of incarceration rather than spend the rest of life unable to return to the U.S. 

Judulang also illustrates a problem with the majority opinion in Padilla.  As Justice Alito noted in his concurrence, it is problematic to try to draw a distinction between when deportation is a definite consequence and when it is merely a possible consequence.  Looking at Judulang, it is not hard to see that such a distinction is easily lost in the labyrinth of immigration laws.  It is uncertain how criminal attorneys could be expected to properly advise non-citizen clients without the benefit of consulting experts in immigration.  It would not be surprising to see more litigation to this effect.

Ashley Lam

Line Editor, Criminal Law Brief


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May it “Pleas” the Court?

Before Defendants reach the trial stage, most prosecutors will offer a plea agreement.  A plea agreement is a bargain between the prosecution and the Defendant to have a lowered sentence in exchange for a guilty verdict.  Depending on the crime and the Defendant’s criminal background, different factors influence the agreement offered.  When the odds are stacked against a Defendant, wouldn’t taking a suspended sentence and probation make much more sense than “a day in court” and risking years in jail?  This topic has caused much controversy and tension on both ends of the spectrum.  For some Defendants the most important outcome is a non-guilty verdict, while for others it may be the ability to start working or having the ability to move on with their life, which jail time or certain convictions could prevent. 

In offering pleas, the ordinary rules of evidence do not apply.  The court has been generally hands off when dealing with plea negotiations.  Some people consider this to be a positive; however, it is truly up to the defense attorney to explain to their client what the plea means and what consequences guilty verdict holds.   With almost 90% of convictions being settled with pleas, the impact this has on minorities is of interest since the prison system is mainly populated with minorities.  Pleas are a great way to move the docket and to guarantee a “speedy trial” but should this be at the expense of a possible non-guilty verdict?  Once the Defendant has agreed to the plea, the conviction remains on their record as if they went to trial and they have “pleaded” their omission of guilt. 

With the upcoming election year, if someone pleas to one felony to have the prosecution drop the other counts, that person will still not be eligible to vote.  Currently, 25% of African American men do not have the right to vote; given this information, maybe pleas are not worth the possible lightened sentence in certain situations. 

On the other hand, the State should probably investigate certain Defendant’s backgrounds more thoroughly before offering pleas.  The question arises, if the judge sees something in the Defendant’s background that the prosecution does not see, should the court be so removed as to not disclose this information before the Defendant accepts the plea?  For instance, assume the prosecutor does not see a history of money laundering within the Defendant’s record because it is not available in the state.  However, the Court has those records; if the person is taking a plea for the same activity, should the court have some input if the plea is based on the prosecution’s belief that the Defendant has a clean record?  Generally in this case, the court will not be involved, no matter how egregious.

With so much flexibility regarding pleas, some less concrete factors are going to be analyzed in the offer.  But should race ever play a role?  It is easy to say no, but statistics have demonstrated otherwise.  Forty-four percent of African Americans are incarcerated which begs the question of who is committing the most crimes.  However, once statistics illustrate African American men are twenty-seven times more likely to be incarcerated for drugs, where the only difference is color, what is the solution? 

A more critical look at pleas is necessary.  If there is a noticeable difference in the types of pleas given to African Americans, is the system fair?  How will African Americans ever get the best compromise if color creates the disadvantage?  The solutions to pleas are uncertain as negotiation and bargaining dates back in legal history for centuries.  However, the implications are stark and could cause a disparate impact for African Americans than trials.  This is not to say trials are the best method for every conviction, but training or ways to allow officers and attorneys to be aware of these statistics could be a good start.  Pleas are necessary to allow the legal system to run smoothly, but race and some “soft factors” must be analyzed critically when deprivation of people’s freedom and disenfranchisement is at an all time high.

Abre’ Conner

Associate Publications Editor, Criminal Law Brief

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Fourth Amendment Folly: Have Some Federal Courts Diluted the Bare Bone Exception to the Leon Good Faith Exception?

The United States Court of Appeals for the Fourth Circuit heard oral argument on Tuesday, October 27, 2011 for a case involving Maryland teenager, Collin McKenzie-Gude. He graduated from St. John’s College High School in 2008 and planned on attending American University for his undergraduate studies. During the summer in 2008, suspicion arose when McKenzie-Gude and a witness’ nephew allegedly discussed chemicals associated with explosives at the witness’ house. The police investigated the witness’ story and discovered that an AK-47 rifle mentioned in the affidavit was registered to McKenzie-Gude’s father. Further, the police found an AK-47 in McKenzie-Gude’s bedroom after acquiring a search warrant for his parent’s home.

 However, the defense alleges that the affiant misled the Magistrate Judge by stating that McKenzie-Gude could not legally own or possess a firearm—even though some exceptions may have been applicable to the defendant’s case under state law—and there was insufficient evidence to support a nexus between the premises and the crime.

Nevertheless, McKenzie-Gude was sentenced to five years in jail on firearm possession charges and the court did not suppress evidence found in his home. One of the main issues on appeal involves applying the Leon good faith exception to warrant based activity. The Leon good faith exception limits the exclusionary rule as a remedy when an officer executes a warrant under objectively reasonable grounds. The exclusionary rule is a remedy designed to suppress evidence from trial if it was recovered due to most Fourth Amendment violations. Further, the Court fleshes out situations when the Leon exception would not cure a defective warrant, and these include lying and omitting key facts to the Magistrate Judge as well as a bare bones exception where the affidavit is clearly lacking probable cause to where no reasonable police officer can rely on it. The State argues that the good faith exception should apply even though some negligent activity may have taken place in preparing the affidavit. In contrast, the appellant argues that, given the circumstances, the officer’s reliance on the warrant was unreasonable and the good faith exception should not apply.

There could be negative implications for future law enforcement if the court rules against McKenzie-Gude. The Leon good faith exception already gives the police a lot of leeway in carrying out defective warrants; reasoning away the bare bones exception to the exception would allow an even lower suspicion standard than today. The idea of cops being able to search a house under bare bone warrants or when there is no nexus between location and crime is a scary proposition. Not suppressing this evidence would encourage affiants to write bare bone affidavits while omitting key information without corroboration. The Supreme Court wanted to deter this kind of behavior in Leon.

If the Court of Appeals denies McKenzie-Gude claims again, I would not be surprised if the Court grants certiorari on this specific issue. If anything, the Court would clarify how the Leon exception should be applied going forward in Fourth Amendment jurisprudence. This will go a long way in deciding whether preserving the good faith exception and disallowing bare bone warrants are consistent with Constitutional principles. As such, the Fourth Circuit in the coming weeks should honor precedent and suppress the evidence to preserve the barebones exception to otherwise defective warrants.

Max P. Salazar, Jr.

Line Editor, Criminal Law Brief

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Innocent v. Exonerated: A World of Difference

Haynesworth and his legal counsel
when he was released from jail

When most of us walk or drive to the grocery store, we go with the expectation that once we pick up what we need: eggs, fruit, milk, etc., we will then return home.  Returning home for most of us is likely more of a routine rather than an expectation.  On Sunday morning, February 5, 1984, eighteen-year-old Thomas Haynesworth, was on his way to the Trio Supermarket to pick up some bread and sweet potatoes for his mother.  Before reaching the supermarket, Haynesworth was stopped and questioned by law enforcement regarding a recent rape.  Haynesworth had never been arrested; however, on this day, he was mistakenly identified by a rape victim as her assailant.  He did not return home that day.

Twenty-seven years later, at age forty-six, Haynesworth was finally released from prison.  Many individuals equate being released from prison for crimes they did not commit with being exonerated.  This, however, was not the case with Haynesworth, nor is it the case with many individuals who are wrongfully convicted and serve lengthy sentences.  Despite being released, Haynesworth was still required to follow a number of strict protocol regulations, which included having to register as a sex offender.

                            

Through the work of Haynesworth’s extraordinary team of advocates, the Mid-Atlantic Innocent Project and Hogan Lovells LLP, DNA testing revealed Haynesworth’s innocence for one of the rapes in which he was convicted.  This DNA testing also confirmed that Leon Davis, an infamous serial rapist, who was already serving seven life sentences for rapes and assaults he committed, was the actual assailant for one of the rapes where Haynesworth was convicted.

Without DNA evidence for the two remaining convictions, Haynesworth and his legal team faced an even greater uphill battle.  It became evident that the remaining two convictions matched a distinctive “modus operandi” of Davis and the many rapes for which he was imprisoned.  The Commonwealth’s Attorneys in the two jurisdictions where Haynesworth was convicted joined the fight for his innocence.  At their request, Haynesworth took and passed two polygraph examinations regarding his two remaining convictions.

At an en banc hearing on September 27, 2011, Shawn Armbrust, Executive Director of the Mid-Atlantic Innocence Project and Virginia Commonwealth Attorney, Ken Cuccinelli, among other counsel for Haynesworth, appeared before the Virginia Court of Appeals to advocate for Haynesworth’s exoneration.  Shawn Armbrust argued before the court, “[t]he Attorney General and the Commonwealth Attorneys in Richmond and Henrico counties agree that Haynesworth is innocent of these crimes.  With such unwavering support from the state, we are hopeful that we were able to convince the court today to correct this tragic miscarriage of justice.”

The Virginia Court of Appeals will make its decision on a Writ of Actual Innocence in the coming months.  If the court exonerates Haynesworth, it will be a monumental ruling, as only one other convict has been exonerated of such charges without DNA evidence.  Meanwhile, although Haynesworth is no longer incarcerated, he is living his life back in the real world where he now works in Ken Cuccinelli’s office.  Such an outcome is remarkable in our society where there is minimal help for individuals who are wrongfully convicted and begin to reenter society.  

These individuals to whom a great deal of injustice has already been thrown, are not entitled to social services, job training, or any type of psychological counseling, all of which ex-convicts are not only entitled to, but also required to participate in.  Many individuals who have been exonerated face difficulties securing jobs because their criminal records have not been expunged.  Also, due to their lack of skills with much advancement in today’s technology, many employers are reluctant to hire someone who is unfamiliar with how to use a computer.  The Life After Exoneration Project is the only national organization dedicated to helping those who are wrongfully convicted rebuild their lives outside of prison.         

                    

Megan Petry

Staffer, Criminal Law Brief

To find more information on the Mid-Atlantic Innocent Project and the Life After Exoneration Project, you can visit: www.exonerate.org and www.exonerated.org, respectively.


Image by Mid-Atlantic Innocence Project

New Sentencing Measures Make for a Positive First Step to Correcting Cocaine Conviction Disparities and Prison Overcrowding

The nation's prison systems are in drastic need of reform. Many prisons have swelled well beyond capacity, which places a heavy burden on the inmates, prison officials, and the general public alike. Part of this problem is due to the harsh consequences that stem from crack cocaine convictions under the Anti-Drug Abuse Act of 1986 (the “Act”). The Act was a sweeping piece of legislation that was pushed as a part of the “War on Drugs,” and completely reshaped drug enforcement policy in the United States. One principal component of the Act was that it prescribed minimum sentences for certain types of first time drug offenses.

Under the Anti-Drug Abuse Act, an individual convicted of possessing five grams of crack cocaine faced a five-year mandatory minimum sentence; conversely, an individual must be convicted of possessing 500 grams of powder cocaine to get the same sentence. An individual caught possessing only ten grams of crack cocaine was looking at a ten-year mandatory minimum sentence.

Since the Act’s inception, people have criticized it for having a disproportionate negative impact on African-Americans. Crack cocaine tends to be cheaper to purchase and generally more accessible to African-Americans. On the other hand, users of powder cocaine are usually affluent Caucasians. In addition, the Act mandates five-year sentences for individuals possessing small amounts of crack cocaine. Since African-Americans are more likely to possess crack cocaine, they were also more likely to face imprisonment for carrying small quantities of crack cocaine. This second rationale is also a principal reason why prison populations have soared.

Prison overcrowding has become an increasing financial burden on states, and it has magnified in importance because the current economy has forced states to make sizeable budget cuts. According to estimates by the Bureau of Prisons, at the end of 2009, nearly 2,292,133 adults, or roughly one percent of the total United States population, were incarcerated in federal or state prisons and jails. Maintaining overcrowded prisons requires considerable state and federal government resources. The daily cost per inmate in 2009 was about $74.66, and this amount continues to grow. Based on these numbers, in 2009, the amount of money spent providing for an inmate was over $171 million alone. This amount does not even include other expenditures such as wages for correctional officers, and prison maintenance.

In August 2010, President Obama signed the Fair Sentencing Act into law. This Act is designed to alleviate the problem of prison overcrowding as well as reduce the disparity in crack and powder cocaine sentence lengths. Specifically, the Fair Sentencing Act terminates a mandatory sentence for simple crack cocaine possession. An individual must now be convicted of possessing at least 28 grams of crack cocaine in order to face a five-year mandatory minimum sentence. Furthermore, an individual faces a ten-year mandatory minimum sentence only if convicted of possessing at least 280 grams of crack cocaine. Punishment for possession of powder cocaine is left undisturbed, and all of these changes apply to future convictions. These new penalties will surely not have such a disproportionate negative effect on African-Americans.

In April 2011, the Federal Sentencing Commission took the Act one step further and applied the provisions retroactively to individuals already incarcerated for crack cocaine offenses. Thousands of inmates are likely to be released throughout the next few years according to guidelines that ensure maximum public safety. This is undoubtedly a step in the right direction to rectify the problem of prison overcrowding.

There is still a long ways to go to correct the problem of prison overcrowding; however, the Fair Sentencing Act and the Federal Sentencing Commission's decision make for a positive first step. Let us hope that the momentum continues and the criminal justice system is overhauled to focus on more than just incarceration.

Ryan Weir

Staffer, Criminal Law Brief

Image by Marco Gomes