In Pursuit of Fairness: Recent Reforms in Crack Cocaine Sentencing
In 2010, Congress passed the Fair Sentencing Act (FSA), which reduced the sentencing disparity between crack and powder forms of cocaine from 100-to-1 to 18-to-1, and eliminated mandatory minimum sentences for simple possession. The FSA was signed into law by President Obama on August 3. It was the most significant advancement in criminal justice reform in decades. However, questions lingered as to who the new law applied to, when the law applied, and in what manner.
Specifically, questions have been raised about retroactivity (applying the law to offenders currently serving sentences for crack cocaine offenses) and “pipeline” cases (cases involving crack cocaine offenses that were in process at the time of the FSA’s passage). Civil and human rights groups and criminal justice activists argued in 2011 that Congress’ passage of the FSA represented a sharp rebuke to a decades-old overbroad sentencing approach.
Before the FSA, a person charged with possession of just five grams of crack cocaine—the weight of two sugar packets—received the same five-year mandatory minimum sentence as someone caught with 500 grams—about a pound—of powder cocaine, despite the fact that the two forms are pharmacologically the same. The FSA reduced the disparity from 100-to-1 to 18-to-1 and eliminated the mandatory minimum for simple possession for crack cocaine, but left federal penalties for possession of powder cocaine unchanged.
The FSA also granted the U.S. Sentencing Commission, the agency that establishes sentencing policies for fed-eral judges, emergency authority to revise its guidelines to assist with the implementation of the new law. Sentencing guidelines recommend ranges of punishment that usually exceed the mandatory minimum penalty set by Congress. For example, if a mandatory minimum sentence for a particular drug offense is five years, a guideline range may be set at 63 months to 78 months. Changes or amendments to the guidelines can be made retroactively as well as prospectively.
At a June 1 hearing, the commission considered three factors as it weighed applying the amended guidelines retroactively:
- The purpose of the amendment;
- The impact of the change on the pool of eligible offenders and on public safety; and
- The administrative burden of applying the amendment retroactively.
According to the commission’s data, about 12,000 people currently serving time for federal crack offenses—86 percent of whom are African American—would receive a shorter sentence if the new guidelines were applied retroactively. The average offender would see about a three-year reduction in his or her sentence.
Former California Republican Assemblyman and victims’ rights advocate Pat Nolan was among the advocates urging the commission to apply the amendment retroactively. “Congress recognized the injustice of this disparity and passed the Fair Sentencing Act,” said Nolan. “If you approve retroactivity, these offenders will not be getting off easily. The average offender benefitting from retroactivity will see their sentence drop from 167 months to 127 months. That is, they will end up serving over ten-and-a-half years. That is not a light sentence in anyone’s book.”
But some at the commission hearing urged a more conservative approach, including U.S. Attorney General Eric Holder, who endorsed a more limited form of retroactivity that excluded people with longer criminal histories and people found guilty of weapons possession.
Critics argued that Holder’s approach could unnecess-arily 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, NACDL favored the same approach the commission took in 2007 when it readjusted sentencing ranges for crack offenses 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 eligible offenders warranted a reduction in their sentence or did not because they were deemed a public safety risk. That approach is widely considered successful.
Many civil rights groups and leaders, including The Leadership Conference on Civil and Human Rights, had urged 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 groups said in a letter to Holder.
Some members of Congress vehemently opposed any consideration of retroactivity at all. In a June 16 letter, a group of Republican senators wrote to both Holder and the commission declaring their opposition to any form of retroactivity due to public safety concerns. The senators threatened to withdraw support for any future effort aimed at making sentencing laws more lenient. Sen. Chuck Grassely, R. Iowa, also proposed an amendment to force the commission, if it approved retroactivity, to absorb the administrative costs associated with implementing it in the courts. That letter came on the heels of another strongly worded letter from several House and Senate Republicans to the commission questioning its authority to enact such a change, even though Congress granted the independent agency the power to do so in the Sentencing Reform Act of 1987.
The commissioners rejected those arguments, as well as Holder’s approach, and voted on June 30 to apply the guidelines retroactively on the grounds that it was statutorily obligated to reduce unwarranted disparities in sentencing. “Today’s action by the commission ensures that the longstanding injustice recognized by Congress is remedied,” said Judge B. Saris, the commission chair, in a press statement.
The commission argued that retroactivity was necessary to relieve overcrowding in the federal Bureau of Prisons, which is currently at 37 percent above capacity, and to save approximately $270 million over the next decade. With respect to the public safety issue, the commissioners pointed out that eligible prisoners would have to appear before a federal judge before having their sentences shortened. Those who were deemed public safety risks would be denied an earlier release date.
The decision was hailed by civil and human rights groups and criminal justice groups. “Imagine that the Civil Rights Act of 1964 had upheld segregation in existing schools and only mandated integration for new schools being built,” said Jasmine Tyler, deputy director for national affairs at the Drug Policy Alliance. “Without retroactivity, that’s exactly what would happen to the Fair Sentencing Act. The commission should be lauded for their commitment to ensuring racial justice and fairness in the federal system.”
Even after the FSA became law, the Justice Department continued to seek sentences based on the old mandatory minimums for conduct that predated the FSA. For months, the Justice Department defended that policy in court, arguing that because 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.
The policy was roundly criticized by lawmakers, civil rights groups, and trial judges. In November 2010, Sen. 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 “not simply to prosecute defendants to the full extent of the law, but to seek justice” as well.
In January 2011, The Leadership Conference 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 said. “It makes no sense to apply punishment differentially for defendants whose conduct occurred a few days apart.”
The Leadership Conference letter cited a court decision by U.S. District Judge D. Brock Hornby, a Republican appointee, who had taken issue with the Justice Department’s charging policy. “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?” asked Hornby. “I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.”
On July 15, nearly two weeks after the retroactivity vote, Holder announced in a memorandum that federal prosecutors would no longer charge crack cocaine defendants under the previous and more punitive 100-to-1 law simply because their conduct predated the passage of the FSA.
“The goal of the Fair Sentencing Act was to rectify a discredited policy,” Holder said in the memorandum. “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.”
The change in policy will likely help dozens of defendants with cases pending at the time of the FSA’s enactment and others yet to be sentenced. The revised policy, however, 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. On November 28, the U.S. Supreme Court decided to hear arguments in two consolidated cocaine sentencing cases, Dorsey v. United States and Hill v. United States. The Court’s decision will resolve confusion in the lower courts about whether or not the FSA should apply only to defendants whose crimes occurred after the law was enacted.
Next Steps on Cocaine Sentencing
Civil and human rights groups and criminal justice advocates are committed to the complete elimination of unfair, discriminatory cocaine sentencing disparities. The FSA was a tremendous first step toward that goal, so it is critical to the long-term goal of eliminating the disparity that its implementation be undertaken in the fairest manner possible.
Antoine Morris is the former research associate for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund. He currently attends Fordham University School of Law.