Sentencing Commission Hearing on Retroactivity of Crack Cocaine Reduction

Today is the day the U.S. Sentencing Commission is holding its hearing on whether the recent reduction of penalties for crack cocaine as compared to powder cocaine, from 100:1 to 18:1, should apply to those convicted of crack offenses before August, 2010, when the change went into effect. The meeting agenda with links to written testimony is here.

Attorney General Eric Holder says the Obama Administration supports retroactivity for some, but not all, crack defendants. [More...]

...I feel compelled to be here in person today, to join my colleagues in calling for the retroactive application of the guideline amendment.

...[W]e believe certain dangerous offenders including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories – should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The law should be made retroactive to all crack defendants. If they possessed a weapon during the offense, they already got a two point increase. If they used or a consecutive mandatory minimum five year sentence to their drug sentence.

If made retroactive, the change would apply to 12,040 offenders currently serving sentences under the old law and guideline. From the Federal Defender's testimony:

According to the Commission’s analysis, 12,040 offenders would be eligible to receive a reduced sentence based on the new base offense levels and deletion of the cross reference from the simple possession guideline. While this is a large number, it is significantly less than the approximately 20,000 offenders eligible for a reduction after the 2007 amendment.

The potential reduction in the sentence is greater, with average reduction of 37 months (from an average of 164 months to 127 months), representing 22.6% of the average sentence.28 Of the over 9,000 cases for which the Commission has sufficient records for analysis, the large majority of eligible offenders (81.7% or 7,482 offenders) would receive a reduction of thirteen months or more, of which 3,203 would receive a reduction of more than three years.29 Two hundred and eighty offenders would receive a reduction of more than ten years.

Another benefit of retroactivity: prison overcrowding will be reduced:

Reducing prison overcrowding weighs heavily in favor of making the crack amendment retroactive. The Bureau of Prisons is now 37% overcapacity, resulting in extreme overcrowding, unsafe conditions, and reduced capacity to provide treatment and training shown to reduce recidivism.41 Seventy thousand inmates will be triple bunked in three years even if new prisons are opened as projected.

The Federal Defenders oppose limiting those who receive the benefit:

The Commission also requests comment regarding whether, if it makes any part or parts of Amendment 2 retroactive, it should exclude various categories of defendants from eligibility for retroactive relief. It is unclear what prompted these proposals. They have no basis in history or principle, would intrude on the courts’ discretionary decision whether to consider and grant a motion, and would perpetuate the perception and the fact of injustice. We emphatically oppose them.

As to excluding those with higher criminal history categories:

Likewise, we emphatically oppose any compromise that would exclude any class of defendants based on criminal history category, such as those in Criminal History Categories V and VI. Excluding defendants in those two categories would deny any opportunity for relief to 37.6% of otherwise eligible defendants.

This would have an extreme racially disparate impact. In FY 2009, 84.4% of crack offenders in Criminal History Category V were African-American, and 87.3% of crack offenders in Criminal History Category VI were African-American, but only 6.5% of crack offenders in each of those Criminal History Categories were white. And this would serve no legitimate purpose.

There should be retroactivity for all. Congress already compromised when enacting the 18:1 ratio instead of the 1:1 ratio. Enough is enough. The old sentences are draconian and unfair. It's time for real and meaningful change, and that means applying the reductions across the board.

Four Commission votes are necessary to make the change retroactive.

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    The Obama administration (none / 0) (#1)
    by sj on Wed Jun 01, 2011 at 11:13:57 AM EST
    appears to be completely paranoid that someone might "get away with something".  It seems that they would rather have nobody get redress than take a chance that some "unworthy" might also benefit.

    So judgemental.

    Well... (5.00 / 1) (#3)
    by ScottW714 on Wed Jun 01, 2011 at 02:22:02 PM EST
    ... when it comes to crack that seems to be the case, when it comes to previous officials, not so much.  They got away with everything.

    Concede (none / 0) (#6)
    by sj on Wed Jun 01, 2011 at 03:13:55 PM EST
    Well, there's that.

    Interesting study (none / 0) (#9)
    by jbindc on Wed Jun 01, 2011 at 03:47:18 PM EST
    That is being presented at the hearing today on recidivism rates among offenders who had sentence modifications made retroactive pursuant to the 2007 Crack Cocaine Amendment.

    The findings?  There was no statistically significant difference in recidivism rates, nor the types of new crimes committed, nor the timing of the new crimes / arrests between those let out early and those who finished their entire sentence.

    More info that will be(or was already) presented:

    Analysis of the Impact of Guideline Implementation of the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively


    Yes indeed... (none / 0) (#2)
    by kdog on Wed Jun 01, 2011 at 11:36:32 AM EST
    all those sentenced under crackhead law passed in baseless fear and haste should have their sentences reduced.  Eliinated really, but that ain't happening.

    Classic case of playing politics with people's lives...Obama & Holder fearing the soft on crime label.  Better than nothing I guess, but frustrating.

    Can't Have Black Guys... (none / 0) (#4)
    by ScottW714 on Wed Jun 01, 2011 at 02:44:31 PM EST
    ... going easy on black guys.

    As mentioned above, they have more than easy on the former officials, the white guys.  Why does Obama hate black people ?

    I'm joking, but it made me think, what has the first black President done on race ?  I honestly can't think of anything, or even anything he's mentioned since elected.  It's fricken weird.

    I remember a speech before he was elected to thwart the Revered racial brew-ha.


    He did have the beer summit... (5.00 / 2) (#5)
    by kdog on Wed Jun 01, 2011 at 02:49:12 PM EST
    as a token gesture towards improving relations between the black community and the law enforcement community that terrorizes them...fwiw.

    I can't decide (5.00 / 1) (#7)
    by sj on Wed Jun 01, 2011 at 03:21:07 PM EST
    if this comment is funny or sad.

    Both (5.00 / 1) (#8)
    by Zorba on Wed Jun 01, 2011 at 03:31:57 PM EST
    Unfortunately.  Tragicomic?