Crack Cocaine Sentencing

Vol. 38 No. 3

On June 30, 2011, the U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010. Retroactivity of the amendment became effective on November 1, 2011, the same day the proposed permanent amendment would take effect, unless Congress acts to disapprove the amendment.

“In passing the Fair Sentencing Act, Congress recognized the fundamental unfairness of federal cocaine sentencing policy and ameliorated it through bipartisan legislation,” noted Commission chair, Judge Patti B. Saris. “The Commission’s action ensures that the longstanding injustice recognized by Congress is remedied, and that federal crack cocaine offenders who meet certain criteria established by the Commission and considered by the courts may have their sentences reduced to a level consistent with the Fair Sentencing Act of 2010.”

The Commission made its decision on retroactivity after significant deliberation and many years of research on federal cocaine sentencing policy. The Commission has issued four research reports to Congress on federal cocaine sentencing policy, testified numerous times before Congress, and held several public hearings on the topic of federal cocaine sentencing policy. The Commission solicited public comment on the issue of retroactivity and received over 43,500 written responses, the overwhelming majority of which were in favor of retroactivity. On June 1, 2011, the Commission held a full-day hearing at which it heard from twenty experts and advocates within the criminal justice community. The Commission also carefully considered the views it received from Congress, the federal judiciary, and the Department of Justice.

The Commission considered a number of factors during its deliberations, including the purpose of the Commission’s amendment implementing the Fair Sentencing Act of 2010, which lowers the penalties for crack cocaine offenses consistent with the Act, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment.

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission. The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety. “The Commission is aware of concern that today’s actions may negatively impact public safety. However, every potential offender must have his or her case considered by a federal district court judge in accordance with the Commission’s policy statement, and with careful thought given to the offender’s potential risk to public safety. The average sentence for a federal crack cocaine offender will remain significant at about 127 months,” explained Judge Saris.

In December 2007, the Commission voted to give retroactive effect to its 2007 crack cocaine amendment effective March 3, 2008, and the process was smoothly coordinated among the courts, probation officers, U.S. Attorney offices, and the federal public defenders community. Since that time, the federal district courts have processed 25,515 motions, granting 16,433 motions for a reduced sentence and denying 9,082. The Commission has conducted a study of the recidivism rate of those offenders who received a reduced sentence as a result of the 2007 amendment, as compared to a similarly situated group of federal crack cocaine offenders who served their normal term of imprisonment, and determined that there is no statistically significant difference in recidivism rates between the two groups of offenders.

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