In testimony before the US Sentencing Commission Wednesday, Attorney General Eric Holder gave his support to a proposal that could result in the early release of thousands of federal crack cocaine prisoners. The proposal would make retroactive last year's Fair Sentencing Act, which sharply reduced the disparities in sentencing between powder and crack cocaine offenses.
But that law did not provide relief for the nearly 12,000 people currently serving federal crack sentences under the old laws. Prisoners and their families, civil rights activists, and drug reformers have been calling on the Sentencing Commission to make the sentencing changes retroactive.
The harsh old crack laws have been especially brutal on black America. Although blacks make up less than half of all crack users, more than 80% of federal crack prosecutions have been aimed at black defendants, leading to charges of racism in the application of the law, if, arguably, not in its intent.
Holder told the commission that his experience as a federal prosecutor, federal judge, and now the country's top law enforcement officer, "compelled" him to seek to reduce disparities between crack offenders and powder cocaine offenders.
"There is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders," Holder said.
Holder recommended that the commission allow retroactively for only about 5,500 of the 12,000 federal crack prisoners, those without violent or extensive criminal records.
Also testifying before the commission was Marc Mauer, head of the Sentencing Project, a group that seeks reforms of harsh sentencing laws. Mauer said that if retroactivity was applied, the average crack offender would see a 37-month reduction in his sentence.
Retroactivity should be applied because there is "no meaningful pharmacological difference between the two drugs" and "large percentages" of low-level crack dealers are serving long sentences designed for serious traffickers.
Retroactivity could also begin to restore trust in the criminal justice in black America, Mauer said. "For many African Americans," Mauer said, "this fundamental unfairness has undermined the legitimacy of the criminal justice system."
The commission also received more than 37,000 letters and emails on the topic, the vast majority of them prisoners and their families supporting equality for crack and powder cocaine offenders and calling for retroactivity to be applied.
The Sentencing Commission is expected to vote later this month on whether to grant retroactivity under the Fair Sentencing Act. If it does, the action would become effective November 1. Then, prisoners or their attorneys could petition the sentencing judge for early release, or the judges or the director of the Bureau of Prisons could act unilaterally.