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

Attorney General Holder Pursues Fairness in Crack Cocaine Cases

July 21, 2011 - Posted by The Leadership Conference

Federal prosecutors will no longer charge crack cocaine defendants under a previous and more punitive law simply because their conduct predated the passage of the Fair Sentencing Act (FSA), Attorney General Eric Holder announced in a memorandum last week

The change reverses a policy that civil rights groups, federal lawmakers, judges and sentencing experts have criticized as unfair. The new policy will likely help dozens of defendants with cases pending at the time of the FSA’s enactment and others yet to be sentenced.

Before the memo, the Justice Department continued to charge crack defendants in cases that predate the new sentencing law under a 1986 law that punished crack possession 100 times harsher than powder cocaine possession, rather than under the FSA, which narrowed that disparity to 18-1. For months, the Justice Department defended that policy in court arguing that since the FSA was silent on pending cases, it should apply only to defendants whose crimes occurred on or after August 3, 2010, when the law was enacted.

But in a July 15 memorandum, Holder reversed course and instructed all federal prosecutors to apply the fairer FSA penalties to all pending cases that preceded the FSA’s passage. 

"The goal of the Fair Sentencing Act was to rectify a discredited policy," said Holder in the memo. "Most importantly, as with all decisions we make as federal prosecutors, I am taking this position because I believe it is required by the law and our mandate to do justice in every case."

However, Holder said the revised policy does not apply to defendants who were charged and sentenced before the FSA went into effect, even if they have not exhausted their options for appealing their sentences.

The decision to issue a new memorandum came after months of criticism from civil rights groups and senators on the Judiciary Committee, along with a great deal of litigation that resulted in a series of unfavorable court decisions.

In November 2010, Senator Dick Durbin, D. Ill., and Senate Judiciary Chairman Patrick Leahy, D. Vt., sent a letter to Holder arguing that the goal of the FSA was to "restore fairness to federal cocaine sentencing as soon as possible," and urging the department "to issue guidance to federal prosecutors instructing them to seek sentences consistent with the Fair Sentencing Act's reduced mandatory minimums." The letter said that it was incumbent upon the Justice Department to "not simply to prosecute defendants to the full extent of the law, but to seek justice" as well.

In January, The Leadership Conference on Civil and Human Rights sent a letter to the attorney general urging him to change the department’s charging policy. "The recent passage of the FSA emphatically reaffirms Congress' intention that crack defendants are entitled to fair treatment," the letter states. "It makes no sense to apply punishment differentially for defendants whose conduct occurred a few days apart."

The Leadership Conference letter cited a seminal court decision by U.S. District Judge D. Brock Hornby, a Republican appointee, who took issue with the Justice Department’s charging policy. Hornby said, "What possible reason could there be to want judges to continue to impose new sentences that are not fair over the next five years while the statute of limitations runs? … I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair."

U.S. District Court Judge Michael A. Ponsor echoed that sentiment in an April decision, saying, "For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendant(s)."

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