Congress passed a law last year substantially lowering recommended sentences for people convicted of crack cocaine crimes, ranging from possession to trafficking. The idea was to fix a longstanding disparity in punishments for crack and powder cocaine crimes, but the new, lower recommended sentences for crack offenders didn’t automatically apply to people already in prison. Now the six-member U.S. Sentencing Commission must decide whether offenders locked up for crack offenses before the new law took effect should benefit and get out earlier.
Up to 12,000 of the roughly 200,000 people incarcerated in federal prisons nationwide could be affected. A report by the commission estimates that the average sentence reduction would be approximately three years, though a judge would still have to approve any reduction.
“There is a tremendous amount of hope out there,” said Mary Price, vice president of Families Against Mandatory Minimums, an advocacy group for prisoners and their relatives. “There is a potential that people could see their sentences reduced, for some quite dramatically.”
At a meeting in early June, commissioners suggested they wanted to apply the lower recommended sentences to at least some past offenders, but it is unclear how many. Advocacy groups have asked for the widest possible application. But a group of 15 Republican lawmakers from the House and Senate wrote the commission saying the Fair Sentencing Act passed by Congress last year was not intended to benefit any past offenders.
At the June hearing, U.S. Attorney General Eric Holder took the middle road. He expressed support for making the new, lower guideline sentences retroactive but suggested limits on who should be eligible. Holder said prisoners who used weapons when committing crimes or who have significant criminal histories should not be eligible. If the commission adopts that view it could cut in half the number of prisoners who would stand to benefit from 12,000 to approximately 6,000.
Any decision about who should be eligible for a reduced sentence will have to be approved by four of the commission’s six members, who include judges and former prosecutors. Once the commission votes, Congress has until the end of October to reject or modify the guidelines, though that is considered unlikely.
If the commission does decide to lower recommended sentences, the reductions would not be automatic. A lawyer, the overwhelming majority of them public defenders, would file paperwork in court for the prisoner seeing a reduction, and the reduction would have to be approved by a judge. Prisoners would not necessarily have to appear in court, but prosecutors would also weigh in. The earliest prisoners could start petitioning to have their sentence reduced would be November, assuming Congress does not act.
The measure the commission will consider making retroactive changed a 1986 law, enacted at a time when crack cocaine use was rampant and the drug was involved in a wave of violent crime, under which a person convicted of crack cocaine possession got the same mandatory prison term as someone with 100 times the same amount of powder cocaine. The legislation reduced that ratio to about 18-1. The disparity disproportionately affects minorities — some 80 percent of those convicted of crack cocaine offenses are black.
According to Families Against Mandatory Minimums, applying the change to those currently serving prison sentences for crack offenses could lead to major savings for taxpayers.
The group says the current annual per-person cost of incarceration is more than $28,000, and that retroactivity would allow for an average sentence reduction of 37 months. If all 12,040 people who would potentially be affected received the average sentence reduction, it would save taxpayers more than $1 billion over the next 30 years.