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July 01, 2011

Retroactivity Okayed for Cocaine Sentencing Amendment

The U.S. Sentencing Commission voted unanimously June 30 to retroactively apply a proposed amendment to the cocaine sentencing guidelines to implement the Fair Sentencing Act of 2010 (FSA).

The proposed amendment is scheduled to go into effect Nov. 1, 2011, unless disapproved by Congress.

The FSA, strongly supported by the ABA, reduced the 100-1 federal sentencing disparity between powder and crack cocaine offenses to 18-1 and eliminated the mandatory minimum sentences for simple possession of crack cocaine. Mandatory minimum sentences of five and 10 years remain, however, for certain amounts of crack cocaine.

According to Sentencing Commission Chair Judge Patti B. Saris, Congress recognized the fundamental unfairness of federal cocaine sentencing policy and ameliorated it through the bipartisan FSA. She said that the commission’s June 30 vote “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 court may have their sentences reduced to a level consistent with the Fair Sentencing Act of 2010.”

Saris said the commission made its decision on retroactivity after significant deliberation and many years of research on federal cocaine sentencing policy. More than 43,500 comments overwhelmingly in favor of retroactivity were received by the commission when it solicited public input on the issue.

The commission estimates that approximately 12,000 offenders may be eligible to seek a sentence reduction, and an average reduction would be approximately 37 months. The average sentence, even after reduction, will remain at 10 years, but retroactivity of the amendment nevertheless could result in three fewer years of imprisonment for many offenders and a savings of more than $200 million within the first five years.

The ABA expressed support for retroactivity of the proposed amendment during a June 1 Sentencing Commission hearing. James Felman, co-chair of the ABA Criminal Justice Section’s Committee on Sentencing, called retroactive application of the amendment a “moral imperative.”

He emphasized that, prior to enactment of the FSA, threshold levels led to drastic racial sentencing disparities, severe sentences for low-level offenders, and an overburdened federal system.

“Simply stated,” he said, “the purpose of the amendment was to rectify a longstanding and glaring inequity in the sentencing of crack cocaine offenders. This purpose can more fully be achieved through retroactive application to those already visited with sentences now uniformly understood to be unfair. Perhaps no amendment in the history of the commission presents a greater imperative for retroactive application.”

Felman noted that the federal judiciary has the experience and wisdom gained from successful implementation of a retroactive crack cocaine amendment in 2007 when the courts considered and disposed of more than 25,000 petitions for relief.

Attorney General Eric Holder Jr., also testifying June 1 in support of retroactivity, stressed that the sentencing guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety.

Holder also expressed the Justice Department’s view that, even though the FSA contains no specific provision on statutory retroactivity, the Sentencing Commission is well within its authority to make the amendment retroactive.

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