Make Crack Sentencing Changes Retroactive

November 21 - 27, 2007 by Maya Harris, The Post Newspaper

Last week, the United States Sentencing Commission held a public hearing in Washington, DC on crack cocaine sentencing.  The Commission had previously recommended in May 2007 that the sentencing ranges for crack cocaine offenses be reduced effective November 1—but it did not make the changes retroactive.

That means that those sentenced for crack offenses after November 1, 2007 will receive shorter sentences than those sentenced before November 1 for the same offenses.

At last week’s hearing, the Commission was urged to apply the new sentencing rules retroactively.  “If a sentence is sufficient to serve the purposes of punishment for defendants in the future, it is sufficient for those who were sentenced under unjust rules in the past,” testified Julie Stewart, President of Families Against Mandatory Minimums.  “Clearly, justice should not turn on the date an individual is sentenced.”                       

Stewart reminded the Commission that it had faced this issue before, when LSD and marijuana sentencing guideline changes were made retroactive in 1993 and 1995.  “The commissioners who made those decisions were also under pressure not to appear soft on crime.  But they made the tough but fair decision to remedy injustice,” Stewart said.  “Doing so [this time] will underscore that justice is colorblind: LSD and marijuana retroactivity primarily affected white defendants, while crack guideline retroactivity would largely impact African American prisoners.”

According to the Commission’s Office of Research and Data approximately 19,500 people would be eligible to seek a reduced sentence if the sentencing guideline changes are made retroactive.  The sentence adjustments would have to be approved by a judge and the individuals would receive staggered release dates over the next three decades, with about 2,520 people being released from custody in the first year.

The Commission’s sentencing reduction—especially if made retroactive—is a modest but welcome reform.  However, it is important to note that the Commission’s recent changes, whether made retroactive or not, do nothing to impact the statutory 100-to-1 sentencing disparity between crack and powder cocaine.  Right now, distributing 500 grams of powder cocaine carries a minimum of 5 years in federal prison, while distributing just 5 grams of crack carries the same sentence.  In other words, it takes a hundred times more powder cocaine to get the penalty imposed for the possession of crack cocaine. 

The 100-to-1 sentencing disparity—which has had a severely disproportionate impact on the African-American community—will remain in effect unless Congress acts.  While 66 percent of crack users are white or Hispanic, blacks comprise more than 80 percent of those sentenced for crack offenses.  Moreover, the average federal drug sentence for crack offenses for African Americans is 49 percent higher than for whites.

We need to keep pushing Congress to equalize the penalty for crack to that imposed for powder cocaine, and abolish the mandatory minimums that have led to such unfair results.  In the meantime, making the Commission’s recent crack cocaine sentencing changes retroactive would provide some measure of relief to thousands of individuals who have been sentenced under this unjust law.