News & Politics

Fair Sentencing Act Sends Some Crack Prisoners Home -- But For Many, Injustice Endures

For justice to obtain, legislation must advance to treat cocaine as cocaine, no matter what form it takes.

Hundreds of federal crack cocaine prisoners began walking out of prison Tuesday, the first beneficiaries of a US Sentencing Commission decision to apply retroactive sentencing reductions to people already serving time on federal crack charges. As many as 1,800 federal crack prisoners are eligible for immediate release and up to 12,000 crack prisoners will be eligible for sentence reductions that will shorten their stays behind bars.

The numbers of those released vary by region, but federal prosecutors and defenders said Tuesday they would be freed by the dozens in different cities across the land. The public defender for the Eastern District of Virginia expected 75 to be released this week, while his colleague in San Antonio estimated 15 or 20 and his colleague in St. Louis estimated 30 to 50. The federal prosecutor for the Northern District of West Virginia said 92 would walk free there this week.

At this point, there is some confusion over how many people will be released and how fast. 

"We're not sure how many are getting out today," a Bureau of Prisons spokesperson told the Chronicle Tuesday. "This is the first day. We're reviewing files, checking for detainers, so some might not be released. And we don't have a date set yet for when we're releasing numbers."

The releases come after Congress passed the Fair Sentencing Act in August 2010, which shrank the much maligned disparity between mandatory minimum sentences for crack and powder cocaine from 100:1 to 18:1. After Congress acted, the Sentencing Commission then moved to make those changes retroactive, resulting in the early releases beginning this week. 

"For the past 25 years, the 100:1 crack/powder disparity has spawned clouds of controversy and an aura of unfairness that has shrouded nearly every federal crack cocaine sentence that was handed down pursuant to that law. I say justice demands this result," said Ketanji Brown Jackson, vice chairwoman of the Sentencing Commission, after it decided on retroactivity in June. 

Both the Fairness in Sentencing Act and the Sentencing Commission's decision to make it retroactive provoked ire from congressional conservatives. House Judiciary Committee Chairman Lamar Smith (R-TX), opposed both.

"This bill reduces the penalties for crack cocaine," Smith said during debate on the bill. "Why would we want to do that? We should not ignore the severity of crack addiction or ignore the differences between crack and powder cocaine trafficking. We should worry more about the victims than about the criminals." 

But after a quarter century of skyrocketing federal prison populations driven almost entirely by harshly punitive drug laws like the crack statute, Smith's view no longer holds sway. That's in part due to years of efforts by reform advocates, who decried the evident racial disparities in the prosecution and sentencing of crack cases, as well as the Sentencing Commission itself, which for more than a decade has urged Congress to fix the law.

Despite the initial uncertainly, activists, newly freed prisoners, and family members greeted the event with elation. "Beginning today, thousands of individuals across the country will get another shot at justice," said Julie Stewart, director of Families Against Mandatory Minimums. "These people were forced to serve excessive sentences under a scheme Congress has admitted was fundamentally flawed, but, today, they can ask for long overdue relief." 

"It's unbelievable. I'm ecstatic," said William Johnson, a Virginia man convicted of crack distribution conspiracy in 1997 and imprisoned ever since. The 39-year-old told CNN he only found out Monday he was going free the next day.

The joyous reunions taking place this week notwithstanding, the drug war juggernaut keeps on rolling, and there is much work remaining to be done. Not all prisoners who are eligible for sentence reductions are guaranteed to receive one, and retroactivity won't do anything to help people still beneath their mandatory minimum sentences. A bill with bipartisan support in Congress, H.R. 2316, the Fair Sentencing Clarification Act, would make Fair Sentencing Act changes to mandatory minimum sentences retroactive as well, so that crack offenders left behind by the act as is would gain its benefits.

And the Fair Sentencing Act itself, while an absolute advance from the 100:1 disparity embodied in the crack laws, still retains a scientifically unsupportable 18:1 disparity. For justice to obtain, legislation needs to advance that treats cocaine as cocaine, no matter the form it takes.

But even those sorts of reforms are reforms at the back end, after someone has already been investigated, arrested, prosecuted, and sentenced. Radical reform that will cut the air supply to the drug war carceral complex requires changes on the front end.

"We want sentencing reform; we'll take anything we can get," said Nora Callahan, director of the November Coalition, a drug reform group that focuses on federal drug prisoners. "But people have to start demanding that drug war policing tactics change, too. They could stop drug dealing when they see it and stop spending tax dollars on buy and bust operations. Those are front end solutions," she said.

"When the Sentencing Commission evaluated the sentencing schemes, they explained that 'the sentence begins at investigation,' exposing the police tactics that are the beginning of the sentencing process," Callahan continued. "Police control buy and busts and sting operations, and they determine how much drugs or cash they are going to talk some poor SOB into exchanging, or even simply discussing."

Some people imprisoned for too long under racially disparate US drug laws are walking free this week. Others are not. And as long as the drug war keeps rolling along, the federal prisons are going to keep filling up with its victims.

Phillip Smith is an editor at DRCNet.