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Debate Ensues Over Early Release for Crack Offenders
Loading ...Earlier this week, U.S. Attorney General Eric Holder endorsed a limited form of retroactive application of more lenient sentencing policies for offenders convicted of crack cocaine possession. The change would shorten sentences for thousands of prisoners, 86 percent of whom are African American, convicted under what are widely considered to be unduly harsh penalties. Most eligible prisoners would see about a three year reduction in their sentence after a 10 and half year stint.
In his testimony before the U.S. Sentencing Commission, the agency that sets sentencing policies for federal judges, Holder said retroactivity was necessary in fulfilling the goals of the Fair Sentencing Act (FSA), which reduced the sentencing disparity between crack cocaine and powder cocaine offenses.
“Although the Fair Sentencing Act is being successfully implemented nationwide, achieving its central goals of promoting public safety and public trust – and ensuring a fair and effective criminal justice system – requires the retroactive application of its guideline amendment,” Holder said.
The announcement came just days after many civil rights groups and leaders sent him a letter urging him to publicly support retroactivity.
“Retroactive application of the revised guideline is the necessary next step in addressing the unfair, unjustified and racially discriminatory disparity in the treatment of the powder and crack forms of cocaine. The Department of Justice must demonstrate strong support for retroactive application of the guidelines to ensure that this next step is taken,” the letter said.
But Holder refused to support retroactivity for all of the 12,000 estimated prisoners eligible for a reduction due to public safety concerns over those with longer criminal histories.
Others say the Commission should not be contemplating retroactivity at all. “Nothing in the FSA nor in the congressional record implies that Congress ever intended that the new crack cocaine guidelines should be applied retroactively,” Republican Congressman Lamar Smith said in a recent statement. “This sends a dangerous message to criminals and would-be drug offenders that Congress doesn’t take drug crimes seriously.”
The Fraternal Order of Police echoed those sentiments saying early release for crack offenders would impose “undue burdens” on law enforcement create a “potentially more dangerous situation that we can and must avoid.”
But proponents of retroactivity say both Holder’s and other critics’ fears are overblown. in a prepared statement to the commission President of the National Association of Criminal Defense Lawyers (NACDL), Jim E. Lavine argued, “Disqualification based on criminal history category or other aggravating sentencing factor—would serve no rational purpose.”
“This is precisely the type of case-specific determination that should be left to the discretion of the sentencing court,” said Lavine.
Like other supporters of retroactivity, the NACDL favored the same approach the commission took in 2007 when it readjusted sentencing ranges and then applied those changes retroactively. Federal judges were encouraged to use their discretion to determine who among the then 25,000 that were eligible warranted a reduction. Bush administration officials at the time warned of thousands of “violent gangbangers” that would flood the streets.
But by all accounts the commission’s approached work. Data comparing recidivism rates showed those who benefited from the 2007 amendment were less likely to reoffend than those who did not.
Prior to the passage of the Fair Sentencing Act of 2010, it took 100 times as much powder cocaine as it did crack to warrant the same a five-year mandatory minimum sentence. But since the 1980’s, research has shown that crack is not a more addictive or violence-inducing drug than powder, calling the 100-to-1 sentencing disparity into question. Congress then brought down the disparity to 18-to-1, and eliminated the mandatory minimum simple possession for crack cocaine, but left federal penalties for possession of powder cocaine alone. To help implement the reform, the commission revised its new guidelines in accordance with the new law.
Provided that a majority of Commissioners vote in favor of retroactivity the, and both chambers of Congress do not act to overturn that decision, the new guidelines could apply to incarcerated crack offenders as soon as November 1, 2011.
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