Retroactivity for Crack Sentence Cuts Debated

More than 20,000 crack offenders could have their sentences reduced
As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive, which could result in nearly 20,000 crack offenders having their sentences reduced an average of two years or more. The comments heavily favor retroactivity, according to sources close to the commission's work -- but the DOJ has yet to weigh in on the issue.

Marcia Coyle

The National Law Journal

2007-10-26 12:00:00 AM

As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive.

The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing. The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.

The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work. The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say.

This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.

"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM).

DOJ OPPOSITION

Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.

Yet to weigh in on the retroactivity issue is the U.S. Department of Justice. But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline. I can tell you that our comment will reflect our opposition to retroactive application."

Federal drug laws, enacted in the mid-1980s, treat trafficking and simple possession of crack -- an inexpensive smoked form of cocaine -- more severely than powder cocaine. Distributing 5 grams of crack, for example, carries a mandatory minimum prison sentence of five years, the same sentence that distributing 500 grams of powder cocaine carries.

The commission responded to those laws by incorporating the statutory mandatory minimum sentences into the guidelines to provide sentencing ranges that actually are above the statutory mandatory minimum penalties. But last spring, the commission voted to send to Congress a guideline amendment that would reduce crack cocaine sentences by lowering base offense levels for all crack cocaine convictions by two levels. For instance, drug quantities that formerly triggered a guideline range of 151 to 188 months would instead trigger a range of 121 to 151 months.

That amendment alone could affect more than 4,000 federal sentencing cases per year if Congress allows it to go into effect on Nov. 1.

The commission has the authority to make amendments retroactive after considering the amendment's purpose, the magnitude of the change and the difficulty of retroactive application.

The staff analysis of the impact of applying the crack amendment retroactively found the number of crack prisoners eligible would be 19,500 and the average sentence reduction would be 27 months.

The 19,500 offenders who appear to be eligible to seek a reduced sentence were sentenced across all federal judicial districts except Guam and Northern Marianas, according to the analysis. The number of offenders in each district ranges from 1,404 offenders (Eastern District of Virginia, accounting for 7.2 percent of all eligible offenders) to one offender (District of North Dakota).

More than 26 percent of the offenders were sentenced in district courts within the 4th U.S. Circuit Court of Appeals, more than in any other circuit.

The fewest of the offenders were sentenced within the District of Columbia Circuit (which has only one district court) and the 1st Circuit.