Crack Cocaine Sentence Reductions Finally Begin

Posted by Jeralyn Merritt, Firedoglake at 2:00 PM on November 1, 2007.

This post, written by Jeralyn Merritt, originally appeared on FireDogLake

Finally, a little relief is at hand for the vastly disparate and draconian crack cocaine sentences meted out by federal courts. New federal sentencing guidelines for crack cocaine offenses went into effect today.

Starting today, many offenders sentenced in federal court for crack will receive a sentence about 16 months less than they would have yesterday.

By way of background, through mandatory minimum sentencing laws, the Feds have punished crack crimes far more severely than those involving powder cocaine. The U.S. Sentencing Commission followed suit by enacting guidelines that matched the mandatory minimums.

A crime involving five grams of crack cocaine carries a mandatory sentence of five years in prison, and 50 grams carries a 10-year penalty. However, it takes 500 and 1,000 grams of powdered cocaine to trigger the same five and 10 year sentences.

The 100 to 1 ratio between powder and crack cocaine penalties has no rational or scientific basis. (You know you're onto something when even Joe Biden agrees.) After years of debate and studies demonstrating this, and with statistics showing that the crack penalties resulted in great racial disparity in sentences, in May, the United States Sentencing Commission proposed dropping the penalties for crack offenses by two levels. Congress had until October 31 to oppose new guideline. It didn't object, so the new guideline became effective today.

This is a welcome step in the right direction. But let's be very clear. It's not time to open the champagne. This is a relatively minor reduction and it doesn't apply to all defendants.

There's two remaining problems: Retroactivity and mandatory minimum sentences.

First, the Sentencing Commission must decide whether the reduction will be retroactive and apply to the 19,500 currently serving sentences for crack offenses. Its analysis of the issue is here (pdf) and iincludes the statistic that of the 19,500 inmates currently serving federal sentences for crack offenses, 86% are black, 8% are hispanic and 6% are white.

In other words, Blacks serve far longer sentences than whites for a comparable offense regarding substances that are chemically identical. With 19,500 inmates still in prison serving these disparate sentences, retroactivity is essential for fairness.

However, even if the reduction is made retroactive, it will not result in either an automatic sentence reduction or a reduction for everyone.

The problem is that the guideline reduction doesn't affect statutory mandatory minimum sentences. Mandatory minimums trump the guidelines. Under mandatory minimum sentences, there are only two ways a court can depart below the five or ten year sentence. The first is if the defendant has snitched. If he or she has cooperated with the government in the investigation or prosecution of others, and the government decides in its sole discretion that the cooperation warrants a lower sentence and files a motion seeking a lower sentence, courts can sentence under the mandatory minimum. The second way is through what's called a "safety valve." A safety valves allows a reduction below the mandatory minimum for defendants with minimal criminal records, if the offense did not involve a weapon and if the defendant discloses all of his involvement to the Government.

In the case of the non-cooperating defendant, one who either won't rat out others on principle, or has no information to provide, or the defendant who doesn't qualify for the safety valve, the Court is powerless to sentence under the mandatory minimum, no matter what the guidelines provide.

What's needed is for Congress to revise the mandatory minimum sentence laws. Currently, there are three bills pending in the Senate and one in the House that would do so.

Today's reduction also does nothing for those sentenced as career offenders or armed career offenders. And I won't go into the legalese, but some defendants who were sentenced under the guidelines when they were mandatory (a period called pre-Booker, referring to the Supreme Court case that rendered the guidelines advisory only) or at a time when there were different rules regarding departures from the guidelines, could end up with higher sentences if they ask for resentencing now.

The best online resource right now for non-lawyers is Families Against Mandatory Minimums (FAMM.)

Their q and a page about the reduction is here (pdf). A copy of the new guideline is here (pdf.)

Bottom line: Let's be positive about the change. But let's not think our work is done. As of July, here's where our Democratic candidates stood on the issue of mandatory minimum sentence reform.

Jeralyn Merritt is criminal defense attorney in Denver representing persons accused of serious federal and state offenses.