Terese J. Singer

Sentencing Commission Votes to Apply New Guidelines Retroactively

In the 1980s, the use and sale of crack cocaine rose drastically, and so did violence related to crack cocaine. So, in 1986, to combat crack cocaine and the associated violence, the federal government implemented harsh sentencing guidelines for crimes involving crack cocaine. However, this tough stance on sentencing was not taken with other similar drugs, including powder cocaine, because there was not the same rise in violence associated with powder cocaine.

As a result of the tough stance taken, the increased penalties for crack cocaine created large disparities in sentencing for the possession of similar amounts of other drugs. In fact, after the increased federal sentencing laws for crack cocaine were introduced, the disparity in the length of sentences for crack versus powder cocaine crimes became 100:1.

An example given by the Columbus (Ohio) Dispatch illustrates the extreme sentencing disparity clearly: A person possessing 5 grams of crack cocaine would automatically receive a minimum sentence of 5 years in federal prison. Yet, a person would need to be caught possessing 100 times that amount in powder cocaine to receive the same automatic minimum sentence.

While the increased sentences were intended to decrease or deter the violence surrounding the sale and possession of crack cocaine, the actual effect of the sentencing law has been that a disproportionate number of minorities and economically disadvantaged people are receiving long prison sentences for crack cocaine drug crimes. Many of the people arrested for possession of crack cocaine under the law were low-level street dealers and couriers who tended to be African-American whereas many of the people charged with possession or distribution of powder cocaine were higher-level drug dealers who tended to be Caucasian or Latino.

Fair Sentencing Act

Recognizing the unfairness and disproportionate impact of the different sentences imposed for crack and powder cocaine offenses, Congress passed the 2010 Fair Sentencing Act to bring the sentences into greater parity. The act lowered the federal sentencing guidelines for crack cocaine to bring them more in line with, but not equal to, the recommended sentences for powder cocaine.

Even after implementation of the Fair Sentencing Act, there remains an 18:1 disparity in the recommended sentences for crack and powder cocaine offenses - though, this is much fairer than the former 100:1 disparity.

One major shortcoming of the Fair Sentencing Act, however, was that it did not rectify the situation for the many people already in federal prison serving sentences imposed under the old guidelines.

Application of the Act Retroactively

Because the Fair Sentencing Act, as passed by Congress, was not applicable retroactively, the United States Sentencing Commission - created by Congress to evaluate federal sentencing guidelines and make sentencing more uniform - recently unanimously voted to apply the guidelines set forth in the act retroactively. Barring action by Congress, on November 1, 2011, the sentencing guidelines can be applied retroactively to people serving time for convictions involving crack cocaine.

Federal District Court Judge Patti B. Saris, chairwoman of the Sentencing Commission, was quoted in the New York Times as stating that "[the Sentencing Commission's vote to apply the Fair Sentencing Act guidelines retroactively] ensures that the longstanding injustice recognized by Congress is remedied."

Laura W. Murphy, director of the American Civil Liberties Union (ACLU) Washington Legislative Office noted: "Making these new guidelines retroactive will offer relief to thousands of people who received unfair sentences under the old crack cocaine law."

The retroactive application of the guidelines will not automatically shorten the sentences of eligible inmates. Rather, people already incarcerated must request that their sentence be changed by a judge. And, the change in sentence will not automatically be made simply because an eligible person requests the change. Because the end result will be an earlier release from prison, Judges still must consider inmates' risk to public safety when considering whether to lessen inmates' sentences.

The Sentencing Commission estimates that nearly 12,000 federal inmates will be eligible to request a reduction in their sentences once the guidelines are applied retroactively. On average, eligible inmates will have their sentences reduced by just over three years (37 months). However, even after the retroactive application of the new sentencing guidelines, the Sentencing Commission estimates eligible inmates will still serve approximately 10 years in prison.

If you or a family member was sentenced to prison under the former crack-cocaine sentencing guidelines, speak with a criminal defense attorney. A knowledgeable lawyer will help you determine if the prison sentence is eligible for reduction.

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