The Next Battle for Crack Cocaine Sentence Reform? Congress

Not every crack cocaine offender will have their sentence reduced. Here's why.

By Shani O. Hilton Jul 01, 2011

The U.S. Sentencing Commission’s decision yesterday to retroactively apply an amendment from the Fair Sentencing Act of 2010 to inmates is a potential boon for crack offenders who were hit with the old 100-to-1 sentencing guidelines before the law was passed.

The commission voted to apply the 18-to-1 crack sentencing disparity reduction — which was enacted last year after 25 years of the 100-to-1 disparity in punishment of crack offenders and cocaine offenders — to cases where inmates were sentenced before August of last year.

Laura Murphy of the American Civil Liberties Union warns that this doesn’t mean all eligible people will be freed. "Not every crack cocaine offender will have his sentence reduced," she said in a call yesterday. But more than 12,000 people, 96 percent of whom are black and Latino, are now able to go before a judge to seek a reduction.

Judges will decide whether to reduce sentences by weighing behavior in prison, the nature of the offense, and whether a weapon was involved. Federal judge Patti B. Saris, the chair of the commission, said that they expect the average sentence reduction to be by about 3 years, and that offenders will now average around 10 years in prison.

Still, Murphy says, "what we really need is statutory retroactivity," meaning that Congress has to vote to make the entire Fair Sentencing Act retroactive. The Sentencing Commission vote only applied certain amendments from the act retroactively — leaving things like mandatory minimums in place. "There will be efforts to eliminate the U.S. Sentencing Commission," she says, which is why having the statute changed by Congress is critical.

And the commission warns, "Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses."

As Adam Serwer pointed out, the 12,000 men and women eligible for sentence reduction are "less than a fraction of a percent of the more than two million Americans in prison or jail."

Advocates for prison reform praised the vote as a big step in the right direction. But the NAACP’s Hilary O. Shelton said it’s time to end to the crack cocaine sentencing disparity: "Close the gap and bring it down to 1-to-1."

Other prison reform ideas are in the pipeline. Murphy says "we need to get rid of mandatory minimums altogether." And Shelton praised the Justice Integrity Act, a bill introduced by Tennessee Democrat Steve Cohen that would "promote fairness and the perception of fairness in the federal criminal justice system." He also called for a reintroduction of 2010’s End Racial Profiling act, suggesting that racial profiling often leads to the encounters that introduce young men of color into the justice system for minor or perceived offenses.