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Crack sentencing retroactivity vote spurs controversy

Boston – The recent vote by the U.S. Sentencing Commission to apply its newly reduced sentencing guidelines for crack offenses retroactively has spurred debate among defense attorneys, prosecutors and law enforcement officials.

Some defense attorneys contend that the move is necessary to promote fairness and reduce racial disparities, while prosecutors and law enforcement officials warn that the change will send thousands of dangerous criminals from their prison cells to the streets.

At the end of June, the U.S. Sentencing Commission voted unanimously to retroactively apply a proposed amendment lowering the sentencing guidelines for some crack cocaine offenders under the Fair Sentencing Act. That amendment and its retroactivity rule are set to go into effect Nov. 1, at which time prisoners will be able to petition for a sentence modification.

Among other provisions, the Act reduced the sentencing severity ratio between crack and powder cocaine offenses from 100-1 to about 18-1.

The commission estimated that the retroactive application of the rule will result in about 12,000 prisoners becoming eligible to request sentence reductions. The average amount of each reduced sentence would be 37 months, according to the commission.

The impact could be even broader in light of the U.S. Supreme Court’s June ruling in Freeman v. U.S., which said that plea-bargained sentences could also be reduced retroactively under the guidelines.

Defense advocates said that the retroactivity – as well as the sentencing guideline changes themselves – were necessary to correct the negative effects of the sentencing disparity between powder and crack cocaine. That disparity, they said, had a disparate impact on poor and minority defendants.

“The difference between crack and powder cocaine is cultural, not chemical,” Jim E. Lavine, a partner in the Houston office of Zimmermann, Lavine, Zimmermann & Sampson and president of the National Association of Criminal Defense Lawyers, said in a statement. “The commission’s own research indicates that over 80 percent of the non-violent offenders who will benefit from the new guideline are African-American or Hispanic. We can’t give back all the time that offenders served under the previous guidelines, but reducing prison time for those persons still incarcerated is a significant recognition of the unfairness of the old law.”

Other defense lawyers argue that retroactive crack sentencing guidelines don’t go far enough, because the guidelines still call for an 18-fold disparity between sentences for crack and powder cocaine offenses.

“I think it was unconstitutional to ever sentence crack more seriously than powder cocaine in the first place,” said Silver Spring, Md.-based criminal defense attorney Jon Katz. “The remedy is coming too late. But something is better than nothing.”

But law enforcement officials and federal prosecutors, who had urged the commission to vote against retroactivity, said the ensuing sentencing reductions will be detrimental not only to the ability of prosecutors to seek severe punishments for drug dealers, but also to the ability of police to keep the streets safe from violent drug dealers.

In a letter to the commission, Steven H. Cook, president of the National Association of Assistant United States Attorneys, called the vote “a slap in the face to the law enforcement officers who literally risked their lives in order to bring those criminals to justice.”

“Every one of the convicted crack dealers who would benefit from the retroactive application of the crack sentencing amendments received a full measure of due process,” Cook wrote. “Every one [was] either found guilty following a jury trial or pled guilty. Every one [had] a full and fair sentencing hearing before a federal judge. And, every one [was] sentenced under laws passed by Congress and signed by of the President of the United States – laws that were in place for well over two decades.”

Mandatory minimums cut vote’s effect

Defense attorneys contend that prosecutors’ and police officials’ assertion that the retroactivity vote will open prison doors to allow a flood of released crack offenders is erroneous.

That’s because the Act reduced – but did not eliminate – statutory mandatory minimum sentences for most crack cocaine offenses. (The law did eliminate the mandatory minimum sentence for simple possession of crack cocaine.)

Mandatory minimum sentences will often reduce, if not eliminate altogether, any sentence reduction offenders would be able to seek under the reduced federal sentencing guidelines.

Attorney General Eric Holder sent a letter to federal prosecutors clarifying that the commission’s vote had no effect on statutory mandatory minimum sentences, and that the reduced minimums do not have retroactive effect.

“[D]efendants who have their sentences adjusted as a result of guidelines retroactivity will remain subject to the mandatory minimums that were in place at the time of their initial sentencing,” Holder wrote, informing prosecutors of his conclusion that the Act’s new reduced mandatory minimum sentencing provisions apply only to sentences imposed on or after Aug. 3, 2010 – when the Fair Sentencing Act went into effect – regardless of when the offense took place.

“I recognize that this change of position will cause some disruption and added burden as courts revisit some sentences imposed on or after Aug. 3, 2010, and as prosecutors revise their practices to reflect this reading of the law,” Holder wrote. “But I am confident that we can resolve those issues through your characteristic resourcefulness and dedication.”

The lack of retroactivity of the mandatory minimum sentences won’t be a headache just for prosecutors, defense lawyers say.

“When offenses involving crack cocaine, which is known as cocaine base [under the law], started getting more severe sentences under the federal scheme than powder cocaine offenses, there was a view that racism was involved because powder cocaine had a disproportionately high availability among white people versus crack cocaine,” said Katz. “But crack and powder cocaine are the same thing.”

As a result, the separate statutory mandatory minimum scheme undermines the effort to reduce racial disparities, he said.

And in some cases the mandatory minimum sentences imposed for crack cases will apply to cases that don’t involve crack. In June the Supreme Court ruled in DePierre v. U.S. that the term “cocaine base,” as used in a federal law imposing a mandatory minimum sentence for certain drug offenses, means not just crack cocaine, but also cocaine in its chemically basic form.

In its ruling, the Court acknowledged the inconsistency created by the mandatory minimum sentencing scheme and federal sentencing guidelines.

“We recognize that, because the definition of ‘cocaine base’ … differs from the Guidelines definition, certain sentencing anomalies may result,” wrote Justice Sonia Sotomayor for the unanimous Court. “As we have noted in previous opinions, however, such disparities are the inevitable result of the dissimilar operation of the fixed minimum sentences Congress has provided by statute and the graduated sentencing scheme established by the Guidelines.”

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