In the few days since the U.S. Sentencing Commission voted to make changes in federal sentencing guidelines for crack-cocaine offenders retroactive, the decision has drawn both grumbling and applause from folks on either side of the issue — as is par for the course whenever things change in Washington.

Crack sentencing had already undergone changes last year when Congress passed the Fair Sentencing Act, reducing the long-standing "100 to 1" sentencing disparity between powder and crack cocaine to a ratio of 18 to 1. The previous law sentenced people with as little as five grams of crack to a mandatory minimum of five years in prison, while those possessing powder cocaine needed 100 times as much for the same punishment. It's a gap that sent mostly black crack offenders to prison often for longer terms than white powder-cocaine users were given. Although the arbitrary narrowing of the disparity failed to eliminate the gap completely, it was a step in a more equitable direction.


After the law passed, the Sentencing Commission proposed an amendment to the federal sentencing guidelines that would give reduced sentences for newly convicted crack offenders. The amendment did not address, however, thousands of imprisoned crack offenders — of whom more than 80 percent are black (pdf) — who were already sentenced under the old rules.

Push-Back From the Right

Under the U.S. Sentencing Commission's unanimous vote last week, around 12,000 of these offenders will be eligible to seek reduced sentences. Making the new guidelines retroactive doesn't seem all that controversial, since the Fair Sentencing Act was passed in recognition of the old system not making any logical sense. But some Republican leaders in Congress are none too happy with the development.


Last month when the proposal of retroactivity was still on the table and being pushed by the Obama administration, Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee, expressed his disapproval. "It shows they are more concerned with the well-being of criminals than with the safety of our communities," he said.

Following suit, Sen. Charles Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee, called it a "bad idea."


What's Fair?

From the sound of it, you'd think that the prison gates were about to swing wide open, flooding the streets with hordes of violent criminals. Is that what the result will look like? The U.S. Sentencing Commission chair, Judge Patti B. Saris, answers the question with an unequivocal no.


"The Commission is aware of concern that today's actions may negatively impact public safety," she said in a statement (pdf) last week after the ruling. "However, every potential offender must have his or her case considered by a federal district court in accordance with the Commission's policy statement, and with careful thought given to the offender's potential risk to public safety."

In addition to each offender having to face a federal judge, Saris noted, the average sentence for a federal crack-cocaine offender will remain significant, at about 10 years. It's just that, now, offenders stand to have an average of three years cut from their prison terms. Retroactivity for eligible offenders will go into effect Nov. 1.


While a potential 12,000 reduced sentences out of the more than 2 million Americans behind bars hardly makes a dent in mass-incarceration policies in the justice system, the Sentencing Commission did as much as it could under the congressionally set rules it had to work with. The decision also goes further than what Attorney General Eric Holder recommended last month: to exclude those who possessed weapons while committing their crimes, and those with significant criminal histories, from being eligible for appeal. This approach would have left only 5,500 prisoners eligible to petition for a reduced sentence. Deeming it unsound, the commissioners ultimately rejected Holder's suggestion.

"The commission was very hard in their questioning of the view that the Attorney General Holder presented," Kara Gotsch, director of advocacy for the Sentencing Project, told The Root. "That's because the problem with the crack law historically is this presumption that defendants who operate in crack are violent, or more violent than someone who operates in cocaine. This belief is why, to this day, we continue to have an 18-to-1 sentencing disparity. That is fundamentally unfair, and I think the commission believes that is fundamentally unfair."


According to Saris' statement, fundamental unfairness is indeed what the commission's decision came down to. "In passing the Fair Sentencing Act, Congress recognized the fundamental unfairness of federal cocaine-sentencing policy and ameliorated it through bipartisan legislation," she said. "Today's action by the commission ensures that the long-standing injustice recognized by Congress is remedied."

Cynthia Gordy is The Root's Washington reporter.

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