New Retroactive Sentence Guidelines

New 2010 Crack Law Takes another Step Toward Sentencing Equality, But Not Retroactive.

In August 2010, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams.

In a September 27, 2010 opinion piece in the National Law Journal by Harlan Protass and Mark Harris, the authors argue that "although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Many are calling on Congress to take another step forward by making the 2010 law retroactive — a move that would benefit thousands of men and women who were sentenced long ago for crimes involving crack.

Doing so would be a bold step, but not unheard of. Sentencing guidelines are rarely given retroactive effect because of the administrative burdens involved with the re-opening of old cases. But the sentencing commission did exactly that in 2007, when they adopted retroactive guidelines for crack offenses. The 2007 action meant a substantial reduction in sentences for thousands of federal inmates, and it did so without hobbling the judicial system.

The Commission amended policy statement §1B1.10, the crack cocaine sentencing guideline, on December 11, 2007. The changes were in response to years of criticism over the inequality of treatment in the criminal justice system based solely on whether cocaine was found in rock or powder form. The more lenient guidelines went into effect in March 2008, reducing the average sentence for crack cocaine possession by nearly two years. The revisions brought the sentence ranges for crack cocaine in line with other forms of the drug, but left open the question of how inmates previously convicted under the harsher rules would be affected. The Commission's 2007 decision clarifies that issue and applies the guidelines retroactively to prior sentences. It had the potential to effect approximately 19,500 federal prisoners, who were sentenced under the old possession rules.

For twenty years before, federal guideline sentences for crack cocaine offenses had been more severe than for the powder form of the drug. But in recent years, critics have suggested that the drug is just as dangerous and harmful to society in either form, with no legitimate reason for a distinction. The harsher guidelines almost exclusively impacted African American communities, where the drug is more often found in rock form. Federal prisoners serving pre-2007 sentences for crack cocaine possession are able to petition the court. Not all crack cocaine offenders will be eligible for lower sentences and not all of those eligible will receive the same updated sentence. The change is not automatic and requires petitioning to federal court and consideration of many factors, including an inmate's post-sentencing conduct. Each judge will be left to make a case by case determination within a broad range of discretion.

The 2007 retroactivity guidelines can be found at: http://www.ussc.gov/2007guid/030308rf.pdf. The 2010 law is at http://www.ussc.gov/2010guid/PDF_Supplement_2010_Guidelines_Manual.pdf. For more information, feel free to take a look at these FAQs: http://www.famm.org/Repository/Files/082810%20FINAL%20BASICS%20FAQ.pdf.

To retain a lawyer to petition the court or other criminal defense issues, contact the criminal defense attorneys at NachtLaw.

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