August 6, 2010

Cracked But Not Broken: The Struggle for Justice Continues

Crack/Powder Sentencing Disparity, Fair Sentencing Act of 2010, Mandatory Minimum Sentences

By Nkechi Taifa, Senior Policy Analyst at The Open Society Policy Center and the author of an ACS Issue Brief, "The 'Crack/Powder' Disparity: Can the International Race Convention Provide a Basis for Relief?"

For nearly a quarter of a century the disparity between crack and powder cocaine sentencing has stood out as one of the most notorious illustrations of unfairness in the criminal justice system. Since 1986 low-level crack cocaine offenders selling sugar packet and candy-bar-weight quantities of crack cocaine have been punished far more severely than their counterparts who trafficked in large-scale quantities of powder cocaine. For example, one who possessed just 5 grams of crack cocaine received a mandatory felony sentence of at least five years without parole in federal prison, yet one selling 100 times that amount of powder cocaine -- 500 grams -- received the same five-year sentence. Far from being "tough on crime," this 100:1 quantity ratio of low level crack prosecutions amounted to what has been described as "junk food justice," primarily impacting African Americans at the bottom rung of the drug chain.

As a result of bipartisan legislation passed by Congress and signed into law by President Obama on August 3, the five-year sentence for simple possession of crack cocaine has been eliminated. This represents the first time in 40 years that a federal mandatory minimum sentence has been repealed, making the Fair Sentencing Act (S. 1789) a historic legislative achievement. Although advocates fought long and hard for the complete elimination of disparate treatment in crack cocaine sentencing, the Act significantly lowered the 100:1 ratio for distribution of crack to 18:1. While not ideal, achieving this reduction with agreement across the political spectrum was extraordinary, particularly with mid-term elections looming. The new 18:1 ratio will bring relief to nearly 3,000 cases a year, reduce crack sentences by nearly 30 months and, according to the Congressional Budget Office, save the federal government $42 million dollars over a five year period.

Rare bipartisan consensus in support of drug sentencing reform was the catalyst in the passage of the Fair Sentencing Act. Widespread agreement from not only civil rights and criminal justice groups that have historically worked on the issue, but also support from the White House and Justice Department, law enforcement and prosecutors, and political and religious conservatives, was influential. Partisan politics was tabled as Senators and Representatives from both sides of the aisle spoke to the critical need for reform. Rather than the political posturing of "tougher than thou" on crime, the overriding sentiment became "smarter on crime." A groundswell of bipartisan support culminated in "cracking" the disparity, and now it is critical that these same champions come together to support continued reform.

Despite significant improvements made by the Fair Sentencing Act, its application is not retroactive and, absent intervention, those currently incarcerated pursuant to the previous, flawed sentencing scheme will receive no relief. It is incumbent that a bipartisan body of conservatives and progressives, inclusive of sentencing experts, law enforcement professionals, academicians and advocates formally come together to brainstorm relief mechanisms that the U.S. Sentencing Commission, Congress, the Department of Justice, and the President can take to ensure that the fairer sentences that are now the law of the land apply retroactively as well.

For example, the President has the unique power to correct historical injustices through the presidential pardon powder. Hamedah Hasan, a grandmother serving the 17th of a 27-year federal prison sentence for a non-violent crime involving crack cocaine, filed a commutation petition to President Obama earlier this year, after exhausting all other legal remedies. Hasan unquestionably deserves relief. However, rather than the proliferation of individual petitions such as Hasan's, creative recommendations can be advanced such as blanket commutations that extend across the class of incarcerated people currently imprisoned under a law now established as unjust.

Just as there was strong bipartisan energy for the passage of crack cocaine reform legislation, there must likewise be similar vigor to extend the law's reach to others equally deserving - whether through the presidential pardon power, Sentencing Commission guidelines adjustment, or congressional passage of retroactive legislation. And, importantly, the struggle must continue for the complete elimination of the disparity as we strive towards full fairness and confidence in federal drug sentencing policy.