Battle Continues for Fairer Retroactive Sentences for Crack Offenders

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The U.S. Sentencing Commission met June 1 to consider applying revised sentencing guidelines retroactively that would reduce the sentences of some of those convicted for violating federal laws against crack cocaine.

The commission is a federal agency that establishes sentencing practices for federal courts. If it approves the action, it would mean that equalized sentencing guidelines under the Fair Sentencing Act could be applied retroactively, resulting in shorter sentences, or even early release for crack cocaine offenders.

A commission decision on retroactivity is expected later this month.

Attorney General Eric Holder June 1 urged the commission to reconsider some sentences in light of the enactment of the Fair Sentencing Act. The law was signed by President Obama last August and mandates that offenders of crack cocaine laws be treated similarly to offenders of powder cocaine laws. The law did not provide for retroactive application for those in prison under the old sentencing law.

Holder said that the commission should allow the law to apply retroactively for only about 5,500 of the 12,000 federal crack prisoners, those without violent or extensive criminal records.

He said his experience as a federal prosecutor, federal judge, and now the country's top law enforcement officer, "compelled" him to seek to reduce disparities between crack offenders and powder cocaine offenders.

Holder’s stand, however, was not endorsed by an umbrella group for the nation’s federal prosecutors. The day after Holder, the nation’s top prosecutor, called for giving crack cocaine offenders a break, the National Association of Assistant U.S. Attorneys urged the commission not to apply the revised sentencing guidelines to those already convicted of crack offenses.

The law was changed to remove the inequity that resulted in possession of crack cocaine in equivalent amount and size to five pieces of M&M candy being treated as harshly as the possession of powdered cocaine equal in amount to a pound of flour, according to U.S.Politics Today.

The legislation drew support from both Republican and Democratic members of Congress who noted that then-existing sentencing guidelines, which treated crack transgressions more severely than those involving powder cocaine, negatively affected people of color more than Whites.

“Certainly, one of the sad ironies in this entire episode is that a [older] bill, which was characterized by some as a response to the crack epidemic in African-American communities has led to racial sentencing disparities which simply cannot be ignored in any reasoned discussion of this issue,” Rep. Dan Lungren (R-Calif.), former attorney general in California, said on the House floor last year, according to U.S. News and World Report.

Holder had been urged by defense attorneys and civil rights groups to seek retroactive application of the guidelines. The civil rights’ groups said in a May 25 letter to Holder that they want the Justice Department to lead the effort to make sure the guidelines are applied fairly.

“It is incumbent upon the Department of Justice to support retroactive application of the revised Sentencing Commission guideline,” the letter states. “We urge you to not miss this opportunity to again demonstrate the Administration’s commitment to fair, racially unbiased sentencing.”

The NAACP, Leadership Conference on Civil and Human Rights, American Civil Liberties Union, Lawyers’ Committee for Civil Rights Under Law, Harvard Law School were all represented in the letter, along with Rev. Al Sharpton.