U.S. Sentencing Commission Makes Crack Sentence Changes Retroactive

Today the U.S. Sentencing Commission voted to retroactively apply the new penalty scheme for crack offenses it developed in response to a reform bill that Congress approved at the end of last year. Under the old rules, five grams of crack triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder, while 50 grams of crack was treated the same as five kilograms of powder, earning a 10-year mandatory minimum. Congress reduced that unjust, irrational disparity, making it 18 to 1 instead of 100 to 1. Although that law does not apply to people who are currently serving one of the statutory minimums, the commission's vote means the new ratio can be used to shorten the sentences of prisoners who fell below, between, or above the cutoff amounts. The commission estimates that retroactivity will make more than 12,000 crack offenders, 85 percent of whom are black, eligible for shorter sentences. (The criteria recommended by Attorney General Eric Holder, by contrast, would have reduced that number to 5,500.) Laura W. Murphy, director of the American Civil Liberties Union's Washington Legislative Office, comments:

Making these new guidelines retroactive will offer relief to thousands of people s who received unfair sentences under the old crack cocaine law. However, despite today's victory, sizeable racial and sentencing disparities still exist, and it is time for our country to seriously rethink mandatory minimums and a one-size-fits-all approach to sentencing. Based on little more than politics and urban myth, the sentencing gap between powder and crack cocaine has been devastating to our African-American communities.

Julie Stewart, president of Families Against Mandatory Minimums, adds:

The Commission once again has played its rightful role as the agency responsible for developing sound, evidence-based sentencing recommendations. In fact, if Congress had listened to the Commission fifteen long years ago when it first called for crack sentencing reform, today's vote might not have been necessary….

The ball is now in Congress's court. To finish the job, Congress must now make the mandatory minimum sentence for crack cocaine retroactive.

In a 2007 column, I explained why there was no rational basis for the crack sentencing disparity.