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May 01, 2011

ABA Opposes Permanent Adoption of Temporary Sentencing Amendment

The ABA submitted comments in March opposing the U.S. Sentencing Commission’s proposal to permanently adopt a temporary emergency amendment to the U.S. Sentencing Guidelines that was put in place last year upon enactment of the Fair Sentencing Act (FSA), which reduced the sentencing disparity between crack and powder cocaine offenses.

The temporary emergency amendment is scheduled to be in place until Oct. 31, 2011, while the commission follows the annual process for approval of permanent amendments to the guidelines. In addition to reducing the powder-crack sentencing disparity from 100-1 to 18-1, the law, P.L. 111-220, increased the amount of crack cocaine required to trigger imposition of a mandatory minimum sentence, eliminated the five-year mandatory minimum sentence for first-time possession, and incorporated aggravating and mitigating factors for drug trafficking offenses.

The sentencing disparity had led to draconian sentences for low-level offenders rather than serious and major drug traffickers and was associated with a highly disproportionate concentration of African-American individuals sentenced for crack offenses. The temporary emergency amendment, however, circumscribed the remedial effects of the FSA by reducing the number of eligible defendants and decreasing the amount of the sentencing reduction for qualifying individuals. The temporary amendment raised the base offense levels of crack and powder from 24 grams to 30 grams, the level set by the commission in 2007, to 26 grams and 32 grams, thereby assigning a range that begins at 63 months to offenders who meet the 28-gram threshold that triggers the 60-month statutory minimum.

“To maintain consistency with the goals of the FSA and ABA policy, the ABA advocates implementation of the FSA with the base offense levels set to the 2007 levels of 24 and 30,” the comments stated, maintaining that there is no evidence in the legislative history of the FSA to support the changes. 

While the ABA opposes the permanent implementation of the temporary emergency amendment, the association does support retroactive application of a permanent amendment to the drug quantity tables. The commission estimates that 15,227 offenders would be eligible for sentence reductions under retroactive application.

“These sentencing reductions would both reduce racial sentencing disparities and provide relief to the prison system,” the comments said. Even if there are some additional resources required by retroactive application, “this is a small price to pay for the more important goal of achieving justice and fairness within the federal sentencing system,” the comments concluded.

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