Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over.
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Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced. This newest victory made it clear that the FSA covered this critical category of cases, preventing a "crazy quilt" of inconsistent sentencing outcomes.

The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing. First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1. Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act. Third, the Commission unanimously agreed to make these changes retroactive. Fourth, the Department of Justice revised its guidance to prosecutors, stating that defendants with pending cases caught in the pipeline between the Act's passage and sentencing should receive the benefit of the new law. And now, our nation's highest Court has agreed, stressing the importance of sentencing uniformity.

None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.

The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy. There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform. Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.

Professor Mark Osler and former prosecutor Matthew Fass in a recent article, highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions. On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial. A systematic process of review for this discrete class of cases helped mend a nation divided by conflicting opinions about the legitimacy of the war and the reasonableness of sanctions for those who resisted participating in it for personal moral reasons.

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card." Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades. The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century. And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica. Reports of misconduct involving the commutation application of former college student Clarence Aaron, serving a triple life sentence for a non-violent crime involving crack cocaine, continue to illustrate problems with the way the current clemency process is handled.

Only one commutation application -- that of Eugenia Jennings -- has been granted during this administration. If a dedicated and transparent process existed to address the class of cases not impacted by the FSA, not only Ms. Jennings, but the sentences of several thousand others would be revisited and boost confidence and promote integrity in a criminal justice system fraught with public criticism.

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over. The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

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