Cracks in the System: Are More Than 20 Years of Unjust Federal Crack Cocaine Sentences Coming to an End?

We have a long way to go before ending the most notorious racially discriminatory drug law in the criminal justice system. Currently, the federal crack cocaine law requires that if a person gets caught distributing or possessing 5 grams of crack cocaine, he or she is automatically subject to a 5-year mandatory minimum prison sentence; conversely that same person would get a 5-year sentence by distributing (not possessing) 500 grams of powder cocaine. For possession of powder cocaine you could not receive a sentence over one year.

However, there have been recent landmarks in efforts to reform the federal crack cocaine law. On December 10, the Supreme Court in 7-2 decision in the Kimbrough v. United States case held that federal judges can sentence crack cocaine offenders below the federal sentencing guidelines, if they disagree with 100 to 1 statutory disparity between crack and powder cocaine. Chief Justice John Roberts, considered by most as one of the more conservative members of the court, joined the courts' decision in Kimbrough that was authored by Justice Ruth Bader Ginsberg. Justice Scalia, who wrote the opinion in Blakely v. Washington, a decision that began the dismantling of mandatory sentencing guidelines, sent the signal during the oral arguments of the Kimbrough case that after the United States v. Booker decision it is an advisory guideline world and federal prosecutors and judges just have to get used to it. The Supreme Court in Kimbrough sent an even clearer message that federal sentencing guidelines are now advisory and as long as judges don't sentence a person below the federal mandatory minimums for crack offenses, they can issue sentences below the guidelines if they believe the 100 to 1 disparity is unfair.

Just as people were recovering from the Supreme Court victory, on Tuesday, December 11, 2007, the United States Sentencing Commission (USSC) in a 7-0 unanimous vote decided to apply the changes to the sentencing guidelines that the commission promulgated in April and became effective November 1, 2007 retroactively. This means that approximately 19, 500 prisoners who were serving longer sentences than even the 5- and 10-year mandatory sentence required will now only have to serve the sentence they should have received in accordance with the law. Even President Bush got in on the action and commuted the 1992 prison sentence of Michael Dwayne Short of Hyattsville, Maryland, who was convicted of a crack offense and has already served 15 years of his 19-year sentence. Short's sentence was commuted on the same day as the USSC decision and he will be released on February 8, 2008.

Despite all this exciting and encouraging news about reform of the federal crack cocaine law, the most important thing to remember is that these developments result in only incremental progress. Congress still must act in order to eliminate the statutory 100 to 1 disparity between crack and powder cocaine. The USSC's guideline changes will not eliminate or even significantly alleviate the very long mandatory minimum sentences that many people are serving for crack cocaine offenses. While crack offenders may not necessarily serve more than their mandatory minimum sentence in light of the sentencing guideline change and its application retroactively--they will still have to serve their mandatory sentence.

It is also important to remember, all federal crack offenders will not be eligible to be released from prison. Contrary to the Department of Justice's rhetoric, criminals will not flood the streets of our communities tomorrow. People will not automatically be released from prison. All offenders will first have to go before a court to have their case reviewed and a judge will decide whether the person should be released from prison. Also, the over 19,000 prisoners who may come home if eligible, will be released over a period of 30 years, thus resulting in at most 2500 people being released in any year.

When all the smoke and misinformation clears about what the Supreme Court and the USSC did and did not do--the bottom line is still the same as it was over 20 years ago. That bottom line is that Congress must act now to correct the policy that the USSC has said, if addressed, would do more to reduce the sentencing disparity "than any other single policy change" and would "dramatically improve the fairness of the federal sentencing system. "It has been more than 20 years... 2008 is the time for Congress to act!!