More Crack Retroactivity Action

United States v. Wood, Nos. CR-88-0723 (CPS), CV-94-4652 (CPS), CV-96-2498 (CPS), CV-02-1678 (CPS), CV-06-2851 (CPS), 2008 WL 163694 (E.D.N.Y. Jan. 15, 2008)

Wood was sentenced to 235 months for his narcotics conviction.  On December 17, 2007 he filed a pro se motion after the Sentencing Commission voted to apply the new crack guidelines retroactively.  The Court issued an order for the government to show cause why the relief in Wood's motion should not be granted.  The Government responded that the relief sought was premature because the new crack guidelines do not become retroactive until March 3, 2008.  Not so fast, said the Court:

Although a ruling reducing the sentence before March 3, 2008 may be premature, 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.  Given the substantial likelihood that Wood will be successful on the merits of his motion and the irreparable harm that would result to him if he were to remain incarcerated for a longer period of time than necessary, the government is hereby directed to state its position in writing on Wood's eligibility for resentencing on or before January 22, 2008, and to produce defendant before the undersigned on February 4, 2008, when the motion will be argued.

This is the second in a now growing trickle of retroactivity motions, and the second time an offender likely will be eligible for immediate release upon the effective date of retroactivity.  Motions of this sort raise a whole host of questions.  From the public's perspective, will the naysayers and politicians who opposed retroactivity use individuals like Wood as poster-boys for the release of convicted felons onto the streets?  Will that cause any public backlash?  From the prosecutor's perspective, will U.S. Attorneys Offices nationwide be clogged with motions like that filed by Wood that will require responses from individuals who likely were not involved in the original cases?  Will they be able to find the files from cases years ago?  Can they handle the volume?  From the courts' perspective, are the two cases so far identified in the Second Circuit an indication that, to paraphrase Dr. Martin Luther King, judges feel that they are "free at last" from harsh crack guidelines and intend to do something about it?  Stay tuned.