North Carolina U.S. Attorney Shappert "nullifies" retroactive relaxation of crack sentences

Have we found another member of Dick Cheney's "fourth branch of government", heedless of Congress and the courts?

While he might not word it in quite those terms, law professor Doug Berman of the Sentencing Law and Policy blog detects some un-kosher deprivation of due process in the Western District of North Carolina, the demesne of U.S. Attorney Gretchen Shappert.

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Background:

Prompted by by U.S. Supreme Court decision on criminal sentencing last December, the U.S. Sentencing Commission recently (some would say belatedly) realized that it was inequitable (read: unfair) for the criminal sentence for dealing one ounce of crack cocaine to be equivalent to the sentence for dealing one hundred ounces of powder cocaine—a sentencing formula which had been the rule for over twenty years. Congress held hearings sympathetic to the USSC's revision, wherein an ounce is an ounce, by statute, including the commission's directive that currently-incarcerated felons whose sentences were calculated under the old guidelines have their sentences refigured, and be released if appropriate.

Now, across the U.S., dozens of people convicted of dealing crack are free—earlier than they would have been, but contemporaneously with their powder coke-dealing brethren—and despite dire warnings from many conservatives and prosecutors, the world has not yet been immolated in a glass pipe.

Across the U.S., that is, except in Charlotte and the rest of western North Carolina.

This Charlotte Observer story, headlined "N.C. slow to cut crack sentences," provides a fascinating account of the challenges in implementing the new retroactive crack sentencing guidelines. Here are snippets from a must-read (with key points for commentary in bold):

Federal judges across the country have released hundreds of crack cocaine inmates or reduced their sentences under new guidelines that took effect this month. But in North Carolina, the courts have shortened sentences for just three people, public defenders say.

At least 14 other inmates prosecuted in the Charlotte region qualify for immediate release but remain incarcerated, according to Claire Rauscher, public defender for Western North Carolina. More prisoners statewide may be in the same situation, according to officials who are examining records to determine who is eligible....

Court officials say they are working as quickly as possible through caseloads among the largest in the nation. They said they would resolve more cases in coming weeks. "This is a new law and the first couple of weeks always take the longest," said Frank Johns, clerk of the U.S. District Court for Western North Carolina, which covers Charlotte....

Prisoners in other states have moved faster through the courts. As of Friday, the federal government said it had received about 1,900 court orders reducing prisoners' sentences.

At least 400 court orders were received the week of March 3, the day the new guidelines took effect, said Michael Nachmanoff, public defender for the U.S. District Court for Eastern Virginia. Nachmanoff said at least seven offenders from his district were immediately released from prison March 3 because the courts started working on the cases in February. "There are many districts that have had success," Nachmanoff said. "Unfortunately, North Carolina is behind the curve."...

Of the 14 remaining Western North Carolina cases where public defenders have pending requests for an inmate's immediate release, almost all have been delayed because the U.S. Attorney's Office has failed to file paperwork, said Rauscher, the public defender.... Rauscher said most of the inmates eligible for immediate release are nonviolent offenders. They live in halfway houses. "I'm very frustrated," she said....

A spokeswoman for Western North Carolina U.S. Attorney Gretchen Shappert declined to comment. Shappert has been an outspoken critic of the sentence reductions, testifying to the Sentencing Commission last year that it would put dangerous criminals back on the streets. Shappert testified that their release would harm law enforcement successes that help make neighborhoods in Charlotte and elsewhere less violent. "Crack dealing is not a victimless crime," she said. "It holds entire communities hostage."

Though I am not one to quickly throw around serious accusations, this press report suggests a kind of "prosecutorial nullification" might be keeping some NC defendants in federal prison longer than justice demands. As the article explains, the US Attorney in this key NC district is personally against allowing any crack defendants getting reduced sentences. She certainly can and perhaps eventually will make these arguments to the federal judges considering defendants' motions for reduced sentences. But rather than make her arguments in each case and letting a judge decide (as the law now requires), it appears the US Attorney in this key NC district may be indirectly blocking the consideration of these motions for reduced sentences by failing to file needed paperwork.

I hope anyone directly involved with or knowledgeable about what is going on in the Western District of NC might report on whether my concerns about "prosecutorial nullification" are founded. Of course, a recent case around Duke reminds us that some prosecutors in North Carolina can be motivated by concerns other than true justice. I hope the facts of what's going on in this new setting does not prove to be another case of an NC prosecutor gone wild.

I haven't been able to find out much else about Ms. Shappert, but I did see one thing that suggests she knows how to play ball—perhaps a self-serving form of hardball, at that—with the Bush Administration; from a March 2007 comment to TPM Muckraker:

McClatchy reporter Ron Hutchinson reported on Monday that Monica Goodling "was influential in preventing the ouster of US Attorney Gretchen Shappert in western North Carolina."

Has anybody looked at why Shappert might have been on the list in the first place? Or why Goodling might have wanted her off the list?

The most recent high-profile public corruption case was against Dem. House Speaker Jim Black.

But the only thing that caught my eye that might be substantial enough to make Shappert a "don't go there" can-of-worms for a highly controversial firing scenario is this posting of an Aug. 2005 report by Garly L. Wright and Jim Morrill[.]

A Charlotte FBI agent claims he was indicted in April in retaliation for a whistleblower complaint he filed against U.S. Attorney Gretchen Shappert and another prosecutor, accusing them of abusing their powers.

Attorneys for agent Erik Blowers also suggest Shappert and at least one other prosecutor believed their boss, then-U.S. Attorney Bob Conrad, protected Blowers by not investigating him.

They say prosecutors may have tried to derail Conrad's appointment to a federal judgeship. Conrad was sworn in two months ago after his nomination was blocked for two years.

In documents filed in federal court, defense attorneys Chris Fialko and David Rudolf call Blowers a victim of "vindictive prosecution."

"We have in this case a situation in which the government indicts an FBI agent for conduct it has never before criminally prosecuted," they wrote.

The documents reveal disputes within Charlotte's law enforcement community, and suggest that those differences had far-reaching implications -- an FBI agent's indictment and a judicial nominee's failure to get a hearing before the U.S. Senate.

Wright and Morrill note that the judicial nomination was blocked by Sen. John Edwards. This all seems to have the right dimensions for a can-of-worms you wouldn't want anywhere nearby during the "push-back" phase that DOJ was clearly anticipating after the firings.

Abuse of power? Is that even possible in the Cheney branch of government?

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