Federal crack sentencing guidelines voted retroactive

In a widely anticipated decision the U.S. Sentencing Commission today voted unanimously to retroactively apply the Fair Sentencing Act of 2010 ("FSA") crack cocaine sentencing guidelines amendments.

Under the newly amended guidelines, some 12,000 offenders may be eligible to seek a sentence reduction in crack cocaine cases. The average sentence reduction in such cases will be approximately 37 months. Prior to the FSA, crack cocaine offenses were punished more harshly than those involving powder cocaine by a now infamous 100:1 ratio. After the FSA, this ratio was reduced to 18:1. The new guidelines amendments reflect a corresponding reduction in crack cocaine offense levels.

The Commission's decision to make the amendments retroactive was not unexpected. The disparity in sentencing of crack cocaine offenses had been subjected to vigorous criticism for years. Sadly, however, the Commission's vote does nothing for those offenders who are serving mandatory minimum sentences under the old crack cocaine laws.

Prior to the FSA, a conviction involving 5 grams of crack would result in a 5-year mandatory minimum sentence. 10 grams triggered a 10-year sentence. After the passage of the FSA on August 3, 2010, those amounts rose to 28 grams for the 5-year minimum and 280 grams for the 10-year minimum. The FSA itself by its terms did not make its own changes retroactive. The Sentencing Commission has no authority to make the FSA itself retroactive, only Congress can do that. Thus people who were sentenced to mandatory minimums under the old laws find no relief in today's vote.

The 9th Circuit recently noted the unjustness inherent in these cases. In being forced to hold that the Court was powerless, in the absence of direct Congressional action, to reduce a sentence in a minor crack cocaine sentence handed down shortly before the FSA became law, the court stated:

"As individual judges, we believe that the result we reach in this case - affirming a sentence of sixty months' imprisonment for a minor drug offense under a law Congress appears to have concluded was groundless and racially discriminatory - subverts justice and erodes the legitimacy of the criminal justice system." United States v. Baptist, ___ F.3d ___ (9th Cir. 2011).

Here's to the 9th Circuit for at least noting the unjustness of this result. If you or someone you love are facing federal crack cocaine charges, or are serving a sentence on such charges, you should speak immediately to an experienced federal criminal defense attorney.


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