New law on crack cocaine penalties should be made retroactive

Friday, February 18, 2011; 8:12 PM

THE PRESIDENT and Congress agreed last year that the penalties for crack cocaine have for decades been grotesquely out of whack.

The result of this refreshing meeting of the minds was the Fairness in Sentencing Act, which brought a measure of rationality to the crack laws. Where an offender once faced a mandatory five-year sentence for carrying five grams of the drug, the new legal scheme imposes the same penalty only if the offender is convicted of peddling 28 grams. A mandatory sentence of 10 years - originally guaranteed for possession of 50 grams - now can be imposed only upon conviction for 280 grams. Just as important, the new law eliminates mandatory minimum sentences for simple possession, and it narrows the gap between the harsh crack sentences imposed most often on young, African American men and the far more lenient penalties for powder cocaine infractions more often associated with white and Hispanic offenders.

The measure was signed into law last August, guaranteeing that those convicted of crack offenses in the future would benefit from the fairer assessments. But the law does nothing for the thousands of prisoners already serving harsh sentences under the old scheme. This injustice can and should be addressed by the U.S. Sentencing Commission.

The commission establishes a range of penalties based on congressional enactments. For example, someone convicted of selling 28 grams of crack could get more than the five-year congressionally mandated sentence when other factors, such as criminal history, are taken into account under the U.S. sentencing guidelines. The commission is preparing to forward to Congress amendments to the guidelines to reflect the changes in the Fair Sentencing Act. The commission should make the new guidelines retroactive.

Some 13,000 prisoners - 85 percent of whom are black - would be eligible for retroactive sentencing reductions, according to the commission's analysis. The average prisoner would receive a sentence reduction of about three years. The releases would extend over 30 years, with potentially 3,000 to 4,500 prisoners being released during the first year after the sentence reductions are made retroactive. But release is not automatic: Prisoners would have to petition a federal court for the sentence reduction, and prosecutors would be able to lodge objections, including those based on public safety concerns.

Making a sentencing change retroactive is not a new phenomenon. The commission did just that three years ago when it amended the crack guidelines and applied the changes to existing prisoners. Since then, some 25,000 prisoners applied for the sentence reduction; some 16,000 of these requests were granted. Even with the reductions, the sentences remained lengthy: The average prisoner earned a reduction of 26 months, from roughly 12½ years to 10 years.

Congress has the power to veto the commission's proposed amendment to implement the changes in the Fair Sentencing Act, but it has no say on whether those amendments, if approved, will be applied retroactively. Some prisoner advocates worry that lawmakers who refused to make the Fair Sentencing Act apply retroactively will nix the proposed amendments just to prevent retroactive application. Such a move would represent the height of cynicism and undercut the good that lawmakers did by passing the Fair Sentencing Act in the first place.

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