11 December 2007

Crack Sentencing Reform in Full Swing

The national tragedy of unjust crack sentences is nearing its end.

The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences.

The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses.

Most of those eligible could receive no more than a two-year cut in their prison terms, but roughly 3,800 inmates could be released from prison within a year after the March 3 effective date of Tuesday's decision. Federal judges will have the final say whether to reduce sentences. . . . The sentencing commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. The new guidelines took effect Nov. 1. . . . Even after the change, prison terms for crack cocaine still are two to five times longer on average than sentences for powder cocaine, the result of a 20-year-old decision by Congress to treat crack more harshly. The commission first said in 1995 that there was no evidence to support such disparate treatment. . . . Several bills have been introduced to further reduce or eliminate the disparity. The Senate is expected to hold hearings on the legislation next year.

Attorney General Michael Mukasey restated the administration's opposition to retroactivity before the commission voted. . . .

Tuesday's vote follows two Supreme Court rulings Monday that upheld judges who rejected federal sentencing guidelines as too harsh and imposed more lenient prison terms, including one for crack offenses.

In the crack case, Justice Ruth Bader Ginsburg's majority opinion said Derrick Kimbrough's 15-year sentence was acceptable, although guidelines called for 19 to 22 years. "In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses," Ginsburg said. . . . 86 percent of the inmates who might see their prison terms for crack offenses reduced after the commission approved retroactive easing. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black.

Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison for trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine.

Judges do not have the authority to impose sentences below the mandatory minimum or grant reductions below the minimum sentences written into the law.

Between 36,000 and 37,000 federal prison inmates, out of a population of 200,000, are serving time for crack crimes. The prisoners who are not eligible for shorter terms either already are serving the minimum sentence, were sentenced for possession of massive quantities of crack or are serving time under laws that apply to "career criminals."

In previous years, the sentencing commission reduced penalties for crimes involving marijuana, LSD and OxyContin, which are primarily committed by whites, and made those decisions retroactive.

From here.

The Kimbrough case and its companion case Gall also seem likely to end a regime in which deviations from the sentencing guidelines to be more harsh are almost always affirmed on appeal, while leniency relative to the sentencing guidelines is frequently reversed on appeal. Under the two cases, almost all reasoned sentencing decisions by trial courts should be affirmed.

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