The State of Federal Cocaine Sentencing Policy: Will Congress Soon Finish What the U.S. Sentencing Commission Started?

In 1995, the United States Sentencing Commission - the independent agency in the federal judicial branch of government that is tasked with promulgating the federal sentencing guidelines and formulating federal sentencing policy -- began efforts to change what it had concluded was an unjustified sentencing disparity between crack and powder cocaine.

This disparity had been created by Congress when it passed the Anti-Drug Abuse Act of 1986. Under that legislation, 100 times as much powder cocaine as crack is required to produce the same punishment. Now, Congress seems poised to follow the Commission's recommendations and address this disparity.

The Commission's 2007 Crack Penalty Reduction and Its Retroactive Application

Last year, the Commission, from which I recently retired as Vice Chair, finally succeeded in making a modest crack penalty reduction, which was accepted by Congress and took effect on November 1, 2007. According to Commission estimates, the reduction amounts to an estimated 27 months off those sentences currently being served by crack offenders, and will, going forward, only reduce sentences by approximately 15 to16 months.

More recently, after careful analysis and strong public support, the Commission voted to authorize federal judges, starting March 3, 2008, to apply this modest penalty reduction retroactively to eligible, deserving offenders sentenced to prison before November 1, 2007.

Regrettably, opponents of this change have misrepresented the retroactivity process and exaggerated public safety concerns - concerns that can and should be appropriately addressed by the courts as offenders' petitions for sentence reductions come before them. In particular, the Attorney General recently testified before Congress asking it to reverse the Commission's action, contending that releasing crack offenders early will increase violent crime in some communities and will clog up the courts with additional litigation.

Importantly such reductions are not automatic, but will be granted or denied by judges on a case-by-case basis. Thus, while the number of possibly eligible offenders--approximately 20,000--may be unprecedented, there is no good reason why Congress should stop this process from going forward.

Why Congress Should Accept the Commission's Retroactive Amendment

Rather than accepting Attorney General Mukasey's unwarranted assertions, Congress ought to carefully examine the relevant facts on the matter, including the series of reports that have been issued by the Commission over the years. The Commission, after all, is the "expert agency" Congress itself created to address and advise Congress on federal sentencing policy. Specifically, with respect to the retroactivity issue, fundamental principles of equitable justice argue strongly that similarly-situated, previously-sentenced crack offenders should also have a chance to prove their fitness for a comparable reduction.

I was pleased to join my colleagues on the Commission in the unanimous decision to make retroactive this modest reduction in crack sentences. According to Commission data, most imprisoned crack offenders are not violent recidivists. Rather, they are only marginally more likely than powder cocaine offenders, and drug offenders generally, to have had weapons involved in their trafficking offenses. Only a minority personally possessed weapons, and an even smaller percentage engaged in any ascertainable physical violence.

Moreover, those crack offenders who did have an association with weapons, violence, or prior criminal records generally will have received longer sentences, and many are subject to statutory minimum sentences that cannot be changed in this process in any event.

Those offenders who may be eligible for relief, and who can overcome the heavy burden of convincing judges they merit it, will generally be older and beyond their peak crime-committing years at the time of any release.

Judges, Probation Officers, and Prosecutors Can All Ensure Dangerous Offenders Are Not Unjustifiably Released Pursuant to the Retroactive Application of the Crack Guidelines Amendment

In sum, the process of deciding who should be eligible for a sentence reduction has multiple safeguards to minimize public-safety risks. The Commission itself put community safety front and center by strengthening the policy guidance judges must use when considering inmate petitions. Perhaps most importantly, a well-qualified, risk-conscious federal judge stands between every crack offender and the prison gate. Additionally, experienced federal probation officers will be updating sentencing reports to give judges current information about each case, and they will help design re-entry programs and provide needed supervision of released offenders.

Government prosecutors, too, have a key responsibility to ensure judges are aware of any evidence relating to the crime or the offender's subsequent conduct that might bear on fitness for a sentence reduction. In some cases, therefore, the prosecutor should zealously advocate that the offender should not be released any earlier than the original sentence allows.

During hearings on the amendment and its retroactive application, spokespersons for federal judges and probation officers assured the Commission that this process will not overwhelm supervision and assistance programs for offenders re-entering the community.

While some offenders may be eligible for immediate release, most will re-enter society gradually over a period of years. Moreover, judges have the capability of designing re-entry programs and supervisory conditions to give each offender whose sentence may be cut the best possible chance to succeed. They can require transition through a halfway-house, impose substance abuse testing and treatment regimens, or impose employment-related conditions.

Congress Itself Can Also Monitor Developments and Should Act in order to Create a More Just Federal Cocaine Sentencing Policy

Of course, the Justice Department is rightly concerned about public safety, and a greater emphasis on re-entry programs is welcome. Congress, therefore, should carefully monitor developments.

The Sentencing Reform Act of 1984 envisioned a very limited, well-regulated remedial process in which judges make their sentence reduction decisions within parameters set by the Sentencing Commission. In the wake of U.S. Supreme Court decisions granting greater judicial sentencing discretion, there may be a tendency for some to exceed intended boundaries in these special, limited-purpose retroactivity proceedings. If that becomes a significant problem, Congress should determine if remedial legislation is warranted.

Finally, Congress also needs to fully understand that a more complete, just resolution of the entire crack/powder excessive disparity issue is now squarely in its hands and urgently needs prompt legislative action. As Commission Chairman Judge Ricardo Hinojosa recently testified before the Senate Judiciary Committee, "[t]he Commission believes that there is no justification for the current statutory penalty scheme for powder and crack cocaine offenses," and "the Commission is of the opinion that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties and therefore must be legislated by Congress."