When the Fair Sentencing Act of 2010 was signed into law on August 3, it reduced the mandatory minimum penalties for federal crack cocaine trafficking and eliminated the mandatory minimum sentence for simple possession of crack. This week, the U.S. Sentencing Commission announced that it has promulgated the final amendments to the federal sentencing guidelines required by the Fair Sentencing Act.

Although the Fair Sentencing Act is legally in force, the new guidelines promulgated this week represent an important administrative step in the process of putting the law into wide effect.

The Act, sometimes called the “crack amendment” represented a major shift in federal sentencing policy. For nearly two decades, criminal defense attorneys, social justice advocates and the Commission itself had sought to change the sentencing structure for crack cocaine offenses because the 100-to-1 disparity between guideline sentences for crack cocaine offenses and those involving powder cocaine had created serious injustice.

Since crack cocaine was more common among the poor and minority groups than powder cocaine, this led to unfairly harsh results for the most vulnerable defendants.

“The Fair Sentencing Act was among the most significant pieces of criminal justice legislation passed by Congress in the last three decades,” said U.S. District Court Judge Patti B. Saris of the District of Massachusetts, who is chair of the Commission.

“For over 15 years, the Commission has advocated for changes to the statutory penalty structure for crack cocaine offenses. The Commission applauds Congress and the Administration for addressing the sentencing disparity between crack cocaine and powder cocaine offenders.”

Federal sentencing guidelines will now focus more on offender culpability than on drug quantity alone

The Federal Sentencing Commission estimates that crack cocaine offenders sentenced after the rules go into effect will receive approximately 25 percent lower sentences, on average, than under the previous guidelines. Because most crack cocaine defendants are non-violent offenders, the reduction in incarceration time is entirely appropriate. The Commission also estimates that the reduction in prison time will save the federal prison system a great deal of money.

Under the new guidelines, the amount of crack cocaine required to trigger a 5-year mandatory minimum sentence has been raised from 5 grams to 28 grams, and the amount triggering a 10-year minimum sentence was increased from 50 grams to 280 grams.

At the same time, the Commission has added requirements to the guidelines directing judges to take certain aggravating and mitigating circumstances into better account in drug trafficking cases. The goal is to focus more on offender culpability, the Commission said, by placing greater emphasis on factors beyond the amount of drugs alone. These changes will reduce, although not eliminate, the disproportionate sentences between crack and powder cocaine offenders.

The amended federal sentencing guidelines will be submitted to Congress for approval by May 1. Congress then has 180 days to review the amendments, and they are expected to go into effect on November 1 unless Congress modifies or disapproves them.

One question left open by the Commission is whether the new guidelines will be applied retroactively. In some cases, federal judges have applied the Fair Sentencing Act itself retroactively, reducing the sentences for crack cocaine offenders.

The U.S. Sentencing Commission is currently seeking public comment on whether the new guidelines should be applied retroactively, and plans to hold a hearing on the issue on June 1 in Washington, D.C.

Source: U.S. Sentencing Commission news release, “U.S. Sentencing Commission Promulgates Permanent Amendment to the Federal Sentencing Guidelines Covering Crack Cocaine, Other Drug Trafficking Offenses,” April 6, 2011