Congress Passes Bill to Reduce Crack Cocaine Penalties
The House of Representatives has passed S. 1789, the Fair Sentencing Act of 2010. It reduces the disparity between crack and powder cocaine penalties from 100:1 to 18:1. It also eliminates the 5 year mandatory minimum sentence for simple possession of crack cocaine and provides for higher sentencing guidelines for all drugs in some cases.
The bill, a compromise between Sen. Richard Durbin and Jeff Sessions, has already passed the Senate. It will now go to President Barack Obama for his signature. Here's a copy, as introduced in March, 2010.
What about retroactivity? The bill does not provide retroactive relief for those already serving long crack sentences. But I'm not seeing anything in the text prohibiting it, it seems to be silent on the issue. Does the silence mean the Sentencing Commission can decide to apply it to those already in prison? And would it?
The House Floor website says: [More...]
Mr. Scott (VA) moved to suspend the rules and pass the bill, as amended.
S. 1789: to restore fairness to Federal cocaine sentencing. Motion to reconsider laid on the table. Agreed to without objection. On motion to suspend the rules and pass the bill Agreed to by voice vote.
As mentioned, the bill also contains provisions directing higher sentencing guidelines for some drug offenders based on what it calls "super-aggravating factors", and one directive for lower guidelines based on role in the offense. For example, an organizer or leader who distributes to a person over 64 years of age will now get a 2 level increase. (What is super-aggravating about that?)
Here's the provision allowing for a decrease from the guidelines (again, this pertains to all drug offenses, not just cocaine):
Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall review and amend the Federal sentencing guidelines and policy statements to ensure that--
(1) if the defendant is subject to a minimal role adjustment under the guidelines, the base offense level for the defendant based solely on drug quantity shall not exceed level 32; and
(2) there is an additional reduction of 2 offense levels if the defendant--
(A) otherwise qualifies for a minimal role adjustment under the guidelines and had a minimum knowledge of the illegal enterprise;
(B) was to receive no monetary compensation from the illegal transaction; and
© was motivated by an intimate or familial relationship or by threats or fear when the defendant was otherwise unlikely to commit such an offense. (my emphasis)
INCREASED EMPHASIS ON DEFENDANT’S ROLE AND CERTAIN AGGRAVATING FACTORS.
Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall review and amend the Federal sentencing guidelines to ensure an additional increase of at least 2 offense levels if--
(1) the defendant bribed, or attempted to bribe, a Federal, State, or local law enforcement official in connection with a drug trafficking offense;
(2) the defendant maintained an establishment for the manufacture or distribution of a controlled substance, as generally described in section 416 of the Controlled Substances Act (21 U.S.C. 856); or
(3)(A) the defendant is an organizer, leader, manager, or supervisor of drug trafficking activity subject to an aggravating role enhancement under the guidelines; and
(B) the offense involved 1 or more of the following super-aggravating factors:
(i) The defendant--
(I) used another person to purchase, sell, transport, or store controlled substances;
II) used impulse, fear, friendship, affection, or some combination thereof to involve such person in the offense; and
(III) such person had a minimum knowledge of the illegal enterprise and was to receive little or no compensation from the illegal transaction.
(ii) The defendant--
(I) knowingly distributed a controlled substance to a person under the age of 18 years, a person over the age of 64 years, or a pregnant individual;
(II) knowingly involved a person under the age of 18 years, a person over the age of 64 years, or a pregnant individual in drug trafficking;
(III) knowingly distributed a controlled substance to an individual who was unusually vulnerable due to physical or mental condition, or who was particularly susceptible to criminal conduct; or
(IV) knowingly involved an individual who was unusually vulnerable due to physical or mental condition, or who was particularly susceptible to criminal conduct, in the offense.
(iii) The defendant was involved in the importation into the United States of a controlled substance.
(iv) The defendant engaged in witness intimidation, tampered with or destroyed evidence, or otherwise obstructed justice in connection with the investigation or prosecution of the offense.
(v) The defendant committed the drug trafficking offense as part of a pattern of criminal conduct engaged in as a livelihood.
The Fair Sentencing Act of 2010 would raise the minimum quantity of crack cocaine that triggers a 5-year mandatory minimum from 5 grams to 28 grams, and from 50 grams to 280 grams to trigger a 10-year mandatory minimum sentence. The amount of powder cocaine required to trigger the 5 and 10-year mandatory minimums remains the same, at 500 grams and 5 kilograms respectively. The legislation also eliminates the mandatory minimum for simple possession of crack cocaine. The quantity disparity between crack and powder cocaine would move from 100 to 1 to 18 to 1.
Currently, 80% of crack cocaine defendants are African American, and possession of as little as 5 grams of crack cocaine subject defendants to a mandatory five-year prison term. For decades the controversial cocaine sentencing law has exemplified the disparate treatment felt in communities of color and the harshness of mandatory minimum sentences.
...For people currently serving time for low-level crack cocaine offenses, the bill's passage will not impact their fate. The Sentencing Project urges Congress, the U.S. Sentencing Commission and the President to apply the sentencing adjustments mandated in the Fair Sentencing Act retroactively.
The bill should have equalized the penalties, left the other guidelines alone and mandated retroactive application for those already serving long sentences for crack. But the world isn't perfect and this will be welcome relief for many. I'm not persuaded by the "first step" arguments. I suspect Congress acting now means it won't be inclined to revisit this issue for a long, long time.
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