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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition

Justice Department: New Sentencing Law Should Apply to Some Imprisoned Crack Offenders

June 6, 2011 - Posted by The Leadership Conference

U.S. Attorney General Eric Holder has endorsed a limited form of retroactive application of sentencing guidelines designed to take into account the passage of the Fair Sentencing Act (FSA), which reduced the discriminatory sentencing disparity between powder cocaine and crack cocaine offenses.

The change would shorten the prison terms for thousands of crack cocaine offenders, 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.

In his testimony last week before the U.S. Sentencing Commission, an agency that establishes sentencing policies for federal judges, Holder argued retroactive application was necessary in fulfilling the goals of the FSA. "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, including The Leadership Conference, sent a letter urging Holder to publicly support guideline 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 projected 12,000 prisoners who would be eligible for a reduction, arguing that prisoners with longer criminal histories should not benefit from guideline retroactivity. Critics argue that Holder’s policy could unnecessarily cut the number of prisoners eligible for relief in half.

"This is precisely the type of case-specific determination that should be left to the discretion of the sentencing court," said Jim E. Lavine, president of the National Association of Criminal Defense Lawyers (NACDL), in a prepared statement to the commission.

Like other proponents 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 used facts contained in the record and their discretion to determine who among the then-25,000 offenders that were eligible warranted a reduction. 

Bush administration officials at the time warned it would result in the release of thousands of "violent gangbangers." 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 FSA, it took 100 times as much powder cocaine as it did crack to warrant the same a five-year mandatory minimum sentence, despite the fact that the two forms are pharmacologically the same. The FSA reduced 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, 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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