New York Times
November 2, 2007
Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday.
The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years.The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines.
The changes to the original 1987 guidelines could also add impetus to three bills in the Senate, one sponsored by a Democrat and two by Republicans, that would reduce or eliminate mandatory minimums for simple drug possession.
Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy.
“The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”
If the guidelines are retroactive, crack cocaine offenders would be eligible to apply to the judge or court that sentenced them for reduced prison terms.
In a letter to the commission in support of retroactivity, the American Bar Association acknowledged the possibility that “courts will likely be inundated” by crack cocaine offenders trying to appeal their cases under the new guidelines regardless of the commission’s decision. But the association said that applying the new rules to current prisoners would result in “cleaner and more uniform decisions.”
Although Congress sets federal criminal statutes and could have rejected the sentencing guidelines within the 180-day period that ended yesterday, once the new guidelines were adopted it became the commission’s sole decision to apply the new rules retroactively or not.
Some legal observers said the guideline changes were a way of shoring up the commission’s credibility in the wake of a 2005 Supreme Court case that allowed federal judges, many of whom thought the guidelines were too harsh, to apply lower sentences in some crack cocaine sentences.
“That created a kind of instability in the overall sentencing guidelines,” said Douglas A. Berman, an Ohio State University law professor. “I think the commission recognized that the long-term health of all of its guidelines depends on its ability to get judicial adherence to their guidelines.”
Federal penalties for crack cocaine were also widely criticized by civil rights activists, politicians and the Sentencing Commission itself for increasing racial disparities in the federal prison population. Blacks make up more than 80 percent of federal crack convictions, according to the commission.
Critics said it was unfair to apply longer sentences for crack cocaine than for similar substances, including powder cocaine. Under the current federal law, for example, the minimum sentence for possession of 5,000 grams of powder cocaine is 10 years, the same as the minimum sentence for 50 grams of crack cocaine.
The commission has also argued that the old sentencing rules diverted resources away from major drug cases to low-level street dealers.
The commission proposed changes to its guidelines on crack cocaine offenses in 1995 and was rejected by Congress, sparking riots in the federal prison system.