Kara Gotsch is the director of strategic initiatives at The Sentencing Project and author of "Breakthrough in U.S. Drug Sentencing Reform: The Fair Sentencing Act and the Unfinished Reform Agenda."
If Downs had been sentenced one day later, he would now be free, because the Fair Sentencing Act reduced the sentence for distribution of 50 grams of crack cocaine to five years. Incidentally, Downs's co-defendants were all sentenced after Aug. 2 and benefited from the lowered penalties.
Earlier this month, the U.S. Court of Appeals for the 6th Circuit ruled there is nothing it can do to help Downs.
To fully appreciate the injustice Downs faces, it is important to understand the sentencing scheme under which he is incarcerated. In the 1980s, at the height of the war on drugs, Congress approved tough mandatory minimum sentences for drug offenses. Among the most severe sentences were those prescribed for crack cocaine. The law placed the quantity of crack that triggered the laws' five- and 10-year mandatory minimum sentences at 100 times lower than what was required for offenses involving powder cocaine, a substance pharmacologically similar to crack.
This had an overwhelmingly disproportionate impact on African Americans living in impoverished inner-city neighborhoods, since crack cocaine was sold in cheaper amounts than the powder form. That's why the U.S. Sentencing Commission — a bipartisan and independent agency — urged Congress for more than a decade to fix the sentencing disparity between the two substances.
Thanks to efforts from civil rights and criminal-justice-reform organizations, the Obama administration signed onto the Fair Sentencing Act, which reduced the drug quantity ratio between powder and crack cocaine that triggers the mandatory minimums from 100-1 to 18-1. The law's disparity is still unjustified, but the 2010 reform was a big step in the right direction.
Unfortunately, the law failed to account for people already in prison under the outdated penalties. According to a document generated by the Sentencing Commission for Congress, 3,147 people could benefit from retroactivity of the law. Eight-nine percent of these prisoners are black.
Eugene Downs, who is African American, is just one of them.
Legislation to apply the Fair Sentencing Act retroactively has garnered bipartisan support in Congress. In 2015, the Judiciary committees in both the House and the Senate approved legislation that would have made Downs eligible for early release. Unfortunately, election-season politics and demagoguery from a handful of Republicans, including then-Sen. Jeff Sessions, doomed the bill.
There is some hope: Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) reintroduced the proposal last year with reforms that would reduce sentences for an even greater number of low-level drug offenses. Many of those provisions would be made retroactive. House Republicans have yet to reintroduce a similar bill in their chamber, but Speaker Paul D. Ryan (R-Wis.) has put criminal-justice reform on his list of priorities for 2018.
Still, President Trump has not indicated that he shares in the bipartisan enthusiasm for sentencing reform. While he recently convened a White House meeting with governors and conservative allies to extol the virtues of second chances and rehabilitation, his decision to put Sessions in charge of the Justice Department is not promising.
In any case, the retroactive application of the reformed sentencing laws should be an exception for "tough on crime" crusaders. Sometimes unfair laws punish people who deserve a second chance. We cannot allow the random day on which people are sentenced to prison be their primary obstacle to justice.
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