This week, more than 12,000 people—85% of them Black—now serving time for crack cocaine offenses will have their sentences reviewed by a federal judge under terms of the Fair Sentencing Act, passed in August of last year. The reform bill reduced the 100-to-1 disparity between minimum sentences for crack and powder cocaine to 18-to-1. On Nov. 1, those already serving time became eligible for a hearing to consider reducing their sentences under the new changes.
Under the former system, five grams of crack resulted in five years of prison, while it took 500 grams of powder cocaine to get the same time in prison. The ACLU's blog called the changes that took effect this week "a huge victory in reducing racial disparities and restoring confidence in the criminal justice system."
The US Sentencing Commission determined the new guidelines should apply retroactively. But rights activists say more needs to be done. "This is an incremental step in trying to address the disparity, but we think the only fair way to treat these two drugs is to treat them and punish them in the same manner," the ACLU's Jesselyn McCurdy told NPR. (Color Lines, Daily News, Nov. 2)
Photo by In a NY State of Mind
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High court expands application of Fair Sentencing Act
The US Supreme Court ruled 5-4 on June 21 that the Fair Sentencing Act (FSA), which reduces minimum sentences for crack-cocaine convictions, applies to defendants who were sentenced after the act was in place, even if they were arrested before the act took effect. In the combined cases of Dorsey v. United States and Hill v. United States, the court considered which sentencing guidelines should be applied.
In Dorsey, the defendant was arrested in possession of 5.5 grams of crack cocaine and was convicted. During the intervening time, the FSA was passed, which raised the amount of crack cocaine required for a five-year sentence from 5 to 28 grams. In his opinion, Justice Stephen Breyer concluded that "Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders," and that the statute should be applied as Congress intended.
The FSA did not include any language to make it apply retroactively, but it not did explicitly deny such retroactivity either. Justice Antonin Scalia filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, finding that Congress must clearly repeal an old statute in order to eliminate its effect.
The court's decision overturns a decision by the US Court of Appeals for the Seventh Circuit upholding the defendants' original sentences based on the old sentencing guidelines. (Jurist, June 20)
Obama under pressure on cocaine sentencing
We don't quite get this. A piece on Slate July 29 called on Obama to commute the sentences of some 5,000 who remain imprisoned under the old cocaine sentencing guidelines—despite the ruling of the Sentencing Commission that the new guidelines should be applied retroactively. The US Courts website in June 2011 said that the new guidelines "could make 12,000 federal offenders eligible to seek a reduction in their prison sentence." So, were 7,000 freed over the past two years? The reporting on this has been grossly insufficient...
6,000 to be released under sentencing reform
Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades, according to US officials. The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. About two-thirds of them will go to halfway houses and home confinement before being put on supervised release. Last year, the US Sentencing Commission voted on a policy called "Drugs Minus Two" which retroactively shaves an average of two years off the sentences for non-violent drug offenders. (KPLC, Oct. 22; WP, Oct. 6)
Obama grants clemency to 61 drug war prisoners
"Sixty-one grants, with over 9,000 petitions pending, is not an accomplishment to brag about," Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency, told the Washington Post.
According to the criteria released by the Department of Justice, prisoners petitioning for clemency must: currently be serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today; be non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; have served at least 10 years of their sentence; have no significant criminal history; have demonstrated good conduct in prison; and have no history of violence prior to or during their current term of imprisonment. (FAMM)