For nearly two decades, criminal defense attorneys and social justice activists had bitterly complained about the 100-1 sentencing differential in the federal sentencing guidelines for crack vs. powder cocaine. The guidelines advised judges to sentence those convicted of possession with intent to distribute crack cocaine to, on average, 100 times more jail time than those convicted of possession with intent to distribute powder cocaine, even when the dosage amount of the drugs was the same.

Last year, Congress amended the federal sentencing guidelines to reduce that bias, specifically noting the unfair impact the previous guidelines on urban-dwelling African Americans and Latinos, who were punished far more harshly for cocaine distribution than the typically white, suburban users of powder cocaine. The Fair Sentencing Act of 2010, often referred to as the “Crack Amendment,” went into effect in November.

The most important question for many convicted of federal crack offenses is this: Will the sentencing reductions in the Fair Sentencing Act be made retroactive? The U.S. Sentencing Commission recently performed an analysis of what to expect if the Crack Amendment were retroactively applied to all crack offenders convicted before the unfair sentencing scheme was changed. Its conclusion was that an estimated 12,835 would be entitled to resentencing.

Federal crack sentences could be reduced an average of 37 to 126 months

The Commission’s analysis considered people currently incarcerated for federal crack offenses who were convicted between October 1, 1991, and September 30, 2009. If the Crack Amendment were applied retroactively to that group, an estimated 7,612 people (nearly 77 percent), could expect sentencing reductions of 48 months or less. Around three percent could have their sentences reduced by more than 10 years.

A previous version of the Crack Amendment went into effect in 2007, and the impact of those changes has previously been analyzed by the Commission. The 2007 crack sentencing changes affected over 15,000 people convicted of crack-related offenses, reducing most sentences by around two years.

While retroactively applying the 2010 Crack Amendment would affect fewer prisoners, the reductions could be larger. In any case, two years’ less jail time would be a life-changing benefit for those prisoners.

It is as yet unclear whether Congress or the Courts will apply the 2010 Fair Sentencing Act retroactively. However, as we reported on January 19, at least one federal judge has already ruled that fairness requires it.

Sources:

• Sentencing Law and Policy blog, “US Sentencing Commission forecasts impact of making new crack guidelines retroactive,” Douglas A. Berman, William B. Saxbe Designated Professor, Moritz College of Law at the Ohio State University, February 2, 2011
• United States Sentencing Commission, “Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine Offenses Made by the Fair Sentencing Act of 2010 and Corresponding Proposed Permanent Guideline Amendment if the Guideline Amendment Were Applied Retroactively,” January 28, 2010