CRACK THE DISPARITY NEWSLETTER

Volume 1, No. 1
Summer 2008
In This Issue The Struggle Continues Legislative Update Grassroots Agenda A Theological Basis for Ending the Sentencing Disparity Save the Date Media Momentum

Feature Story:

Baseball Legend Willie Mays Aikens Released Under Retroactivity Amendment

By Zerline Jennings

Willie Mays Aikens, former first baseman for the Kansas City Royals, made baseball history when he became the first player to have a pair of two-homer games in the 1980 World Series. Years later he made another kind of history when a longstanding addiction to cocaine ended his baseball career and ultimately led to a nearly 21-year sentence for selling crack cocaine to an undercover officer. Finally, in 2008, he again made headlines when a federal judge reduced his lengthy prison term to 14 years as a result of the U.S. Sentencing Commission's recent adjustment to the crack cocaine sentencing guidelines. Aikens was released in June.

"They used my case as an example to show that crack sentencing was cruel and unusual punishment," said Aikens in an interview with WHNS-TV in South Carolina. "I'm glad that after spending 14 years in prison, something good came out of this."

Sentencing reform advocates utilized Aikens' story to illustrate the unjust sentencing and racial disparities between crack and powder cocaine. After being convicted of attempting to purchase cocaine in 1983, his addiction eventually led to his suspension from major league baseball. He returned to Kansas City, after playing ball in Mexico, but continued to battle his addiction, which was quickly ruining his personal life as it had done his baseball career.

Kansas City authorities were aware of Aikens' involvement with drugs. In December 1993, a female undercover officer established a friendship with Aikens and subsequently asked him to obtain crack cocaine for her on several occasions. On at least one occasion, the undercover officer specifically asked him to cook powder cocaine into crack cocaine.

Entrapment and Mandatory Minimums

With this evidence, the U.S. Attorney's office charged Aikens with multiple counts of trafficking crack cocaine. Because of harsher sentencing penalties for using and dealing crack, his sentence for selling 2.2 ounces of crack cocaine was treated as though equivalent to selling 15 pounds of powder cocaine.

Click here to read more. www.CrackTheDisparity.com    Editor's Note:

Welcome to the inaugural edition of the Crack the Disparity Coalition's quarterly e-newsletter. We unveil this publication on an important day, the 22nd anniversary of Len Bias' death - a young man at the apex of a promising basketball career, whose drug overdose fueled the passage of the harsh sentencing law this coalition seeks to change.
This newsletter is designed to maintain the momentum that is propelling reform by keeping advocates updated on news and events related to eliminating the crack cocaine disparity. This newsletter can also be accessed at www.crackthedisparity.com where additional advocacy resources and information can be found.   Crack Cocaine Reform - The Struggle Continues
By Nkechi Taifa, Esq.

In 1994, the U.S. Sentencing Commission issued a call for public comment on laws creating a differential in sentencing between crack and powder cocaine offenses. The federal law, passed after the cocaine-induced death of basketball star Len Bias, requires a mandatory minimum five year sentence for a first time offender's simple possession of five grams of crack cocaine. It takes trafficking in 100 times as much powder cocaine - 500 grams - to trigger the same five year sentence. This has come to be known as the 100:1 quantity disparity between crack and powder cocaine. Click here to read more.
Crack Cocaine Legislative Update By Kara Gotsch

Since the judiciary subcommittees on crime in the U.S. House and Senate held hearings on crack cocaine sentencing reform in February, legislative momentum has slowed in Congress. Even with a total of seven reform bills pending, no committee has held a vote on the bills and none are currently planned. Now is the time to remind Congress that their constituents demand a fairer sentencing structure that eliminates the quantity disparity between crack and powder cocaine and limits the excessive penalties for low-level drug offenses. Public pressure is essential to garner Congress's support for reform and move legislation along. Click here to read more.
Grassroots Agenda: June, July, August By Calli Schiller

As Congress prepares to adjourn for the July 4th and August recesses, now is an excellent time for you to plan grassroots activities centered in the legislators' home-districts. While some Members of Congress (MOC) use these recesses to vacation with their families, many legislators are working in their district offices. This presents an excellent opportunity for in-district meetings, town-hall meetings and site visits. Click here to read more. A Theological Basis for Ending the Sentencing Disparity By Bill Mefford

The Faith in Action Criminal Justice Reform Working Group, which I co-lead, is made up of faith organizations from across the religious and political spectrums. Groups came together to help achieve passage of the Second Chance Act -- a bill providing assistance for prisoners' reentry -- and we found a number of other issues on which we share values. Our goal is to bring crucial reforms to the criminal justice system and we have identified the current crack and powder cocaine sentencing disparity as grossly unjust and in long overdue need of change.

With 2.3 million people currently incarcerated in the United States, and the numbers only climbing, communities are not safer and the flow of drugs into our communities has not been curbed. Long mandatory minimum sentences deny both judicial discretion as well as necessary treatment for those who suffer from addiction as the root cause of their criminal behavior. Click here to read more. Save the Date July 12-17: 99th Annual Convention of the NAACP in Cincinnati, OH (featuring workshops on crack cocaine reform and practice)

July 23-27: UNITY Journalists of Color 4th Quadrennial Convention and Career Fair, Chicago, IL (featuring workshop on draconian sentencing laws)

July 26-August 2, 2008: National Bar Association 83rd Annual Convention and Exhibits, Houston, TX

September 24-27, 2008: Congressional Black Caucus Foundation 38th Annual Legislative Conference, Washington, D.C.

September 26-September 28, 2008: Critical Resistance 10th Anniversary Celebration and International Conference and Strategy Session, Oakland, CA
October 19-22, 2008: International Community Corrections Association 16th Annual International Research Conference, "Risk, Resilience and Reentry," St. Louis, MO Media Attention Washington Post Magazine Cover Story on Michael Short

Los Angeles Sentinel Coverage on Federal Sentence Reduction

Washington Post Coverage on Crack Offenders Returning Home  
The Crack the Disparity Coalition includes the American Bar Association,
American Civil Liberties Union, Break the Chains, Drug Policy Alliance,
National Association for the Advancement of Colored People,
National Association of Criminal Defense Lawyers, Open Society Policy Center, Restoring Dignity, Inc., Students for Sensible Drug Policy, The Sentencing Project, and United Methodist Church, General Board of Church and Society.  

I noted last week the tendency of our revered political strategists to find themselves stuck in the 80's, arguing that harsh lock-em-up rhetoric is the only way to discuss drug policy in an election.

Well, along comes Dick Morris to prove me right in The Washington Post with this recommendation for John McCain:

Go after the Democrats for their proposals to lower sentences for crack cocaine to make them equal to those for powder cocaine. (Instead, McCain should urge raising penalties for regular cocaine.)

Obviously, the crack/powder disparity is a more nuanced political issue than something like medical marijuana. Still, I have a hard time imagining that voters in 2008 want to hear the candidates promise harsher drug laws.

It's not 1988 anymore. People know those crack laws were racist. People know about our unsustainable, out-of-control prison population. And people know the punishments for cocaine are already plenty harsh. I'm not sure where public opinion breaks on this issue, but I doubt Dick Morris does either.

If I had to guess, I'd say McCain will probably follow the path Morris proposes. The appeal of attacking a candidate who's admitted trying cocaine, and now supports a reduction in crack sentences, will be great. On the other hand, if McCain does this, he'll be standing up for a notoriously racist law in an already racially-charged election.

The candidates should choose their words carefully on this one, as should any political strategist who still thinks proposing longer drug sentences is always a guaranteed winner at the polls.

(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

More than 3,000 federal inmates serving lengthy sentences on crack cocaine charges have won reductions in their sentences since changes in sentencing guidelines approved by the US Sentencing Commis

With the early release of some crack cocaine prisoners set to get underway next week and pressure mounting to do something about the disparity between sentences for crack and powder cocaine offense

[Courtesy of Drug Policy Alliance] 

Imagine being able to reform one of the worst federal drug laws of all time. You can do it. The draconian crack/powder cocaine sentencing disparity is on the ropes. We need you to provide the knock-out punch.

Today is a national call-in day on the issue. Please take a few minutes to call your two U.S. Senators and urge them to “eliminate the crack/powder disparity by supporting S. 1711, The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act.” If you can’t call today, that’s OK. Call as soon as you can. Any time this week would be great. It's easy--our website will give you the phone numbers and tell you what to say.

Two weeks ago the Senate Crime and Drugs Subcommittee had historic hearings on the crack/powder issue. The House Crime, Terrorism and Homeland Security Subcommittee is having hearings this week. The Drug Policy Alliance and almost a dozen other national groups are bringing in people from around the country to lobby key members of Congress tomorrow.

Support for reform is growing in both the House and Senate and among both Democrats and Republicans. We hope legislation reducing or eliminating the disparity will move within the next couple of weeks.

It’s not every day we have an opportunity to reduce government waste, improve public safety, promote fairness and restore some sanity to U.S. drug policy. So I hope you take a few minutes to make two phone calls.

Phone calls will make the biggest impact in this campaign. But if you can't call, you can look up the email addresses and fax numbers for your two U.S. Senators at http://www.senate.gov/ .

You can find fact sheets, talking points and articles about crack/powder reform here.

Sincerely,

Bill Piper
Director, Office of National Affairs
Drug Policy Alliance Network 

One of the reasons to already be unhappy with the choice of Michael Mukasey as Attorney General is his opposition to retroactively applying the minor sentencing reductions that the US Sentencing Commission enacted for federal crack cocaine prisoners. Former prisoner Malakkar Vohryzek has called him out for fear-mongering distortions on the issue over at D'Alliance. With a little number crunching, Vohryzek finds that in New York City, for example, if every application for a sentencing reduction is approved, all of eight people serving crack cocaine sentences will get out an return to the community a little early. Yet Mukasey has somehow predicted a "crime wave." Shame on him.

The NAACP's Hilary Shelton -- a stalwart of the campaign to restore college aid eligibility to students who've lost it because of drug convictions, an effort many of you have read about here -- had strong words for Mukasey (via the Sentencing Law and Policy blog):

The NAACP was both saddened and offended by Attorney General Michael Mukasey's call for Congress to override the decision by the U.S. Sentencing Commission to apply their May 2007 decision to reduce the recommended mandatory minimum sentencing range for conviction of possession of crack cocaine retroactive to those already in prison. "Attorney General Mukasey's characterization of people currently in prison for crack cocaine convictions, and of the impact that a potential reduction in their sentences could have on our communities, is not only inaccurate and disingenuous, but it is alarmist and plays on the worst fears and stereotypes many Americans had of crack cocaine users in the 1980s," said NAACP Washington Bureau Director Hilary O. Shelton.

"The fact that a federal judge will be called to review every case individually and take into account if there were other factors involved in the conviction, whether it be the use of a gun, violence, death or the defendant's criminal history before determining if the retroactivity can apply, appears to have eluded the Attorney General," Shelton added. "Furthermore, because more than 82 percent of those currently in prison for federal crack cocaine convictions are African Americans and 96 percent are racial or ethnic minorities, the NAACP is deeply concerned at the Attorney General's callous characterization that many of the people in question are 'violent gang members'."

Also quoted on Sentencing Law and Policy, criticism of Mukasey by the New York Times.

[Courtesy of The Sentencing Project]

Dear Friends:

The Subcommittee on Crime and Drugs of the Senate Committee on the Judiciary will hold a hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity" on Tuesday, February 12 at 2:00 p.m. in Room 226 of the Senate Dirksen Office Building.

"The Sentencing Project applauds the Committee for addressing this longstanding disparity," stated Marc Mauer, Executive Director of The Sentencing Project. "Reforming crack cocaine policy will help to remedy the unfairness and ineffectiveness of federal drug policy."

Witnesses at the hearing will be:

- U.S. Department of Justice designee
- The Honorable Ricardo H. Hinojosa, Chair, U.S. Sentencing Commission, Washington, DC
- Dr. Nora Volkow, Director, National Institute on Drug Abuse, U.S. Department of Health & Human Services, Washington, DC
- The Honorable Reggie B. Walton, Criminal Law Committee, Federal Judicial Conference, Washington, DC
- James Felman, Co-Chair, Sentencing Committee, Criminal Justice Section, American Bar Association

In addition, Marc Mauer, has been invited by the Committee to submit written testimony, focusing on the public safety consequences of crack reform and impact on racial disparity.

Committee Chairman Sen. Joseph Biden (D-DE), has taken a lead in reforming the crack cocaine disparity by introducing the Drug Sentencing Reform and Kingpin Trafficking Act of 2007 (S. 1711), which would eliminate the 100 to 1 quantity-based sentencing disparity between crack and powder cocaine. The legislation would also focus federal law enforcement efforts on serious drug traffickers instead of the low-level offenders who are currently the target of most federal crack prosecutions.

This hearing follows the U.S. Supreme Court's affirmation of judicial discretion to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, and the United States Sentencing Commission's vote to make retroactive its recent guideline amendment on crack cocaine offenses.

US Attorney General Michael Mukasey took his campaign against retroactive early releases for people sentenced under the federal crack cocaine laws to a new level Wednesday as he called on Congress

Please join Families Against Mandatory Minimums (FAMM) and partner organizations as we call for change on Capitol Hill!

Ask Congress to support legislation eliminating the crack/powder cocaine sentencing disparity. In the 21 years that mandatory sentences for crack have been in effect, tens of thousands have suffered unjust, disproportionate, and excessive sentences because of the sentencing disparity. It's time for change.

For over 21 years the inequity between crack and powder cocaine sentences has been the subject of great debate. Now the Senate will take a first step toward addressing this inequity. Three bills have been introduced in the Senate and will likely be the subject of debate at the hearing.

Join thousands of advocates across the country in calling on Congress to eliminate the federal crack/powder cocaine sentencing disparity. FAMM will send an e-alert to its members on February 25 containing a link to talking points and contact information on their lawmakers.

Senate hearing on crack cocaine on Feb. 12 The U.S.

Senate Judiciary Committee, Subcommittee on Crime and Drugs scheduled a hearing for February 12 on federal cocaine sentencing laws titled “Reforming the 100-to-1 Crack/Powder Disparity". For over 21 years, the inequity between crack and powder cocaine sentences has been the subject of great debate. Now the Senate will take a first step toward addressing this inequity. Three bills have been introduced in the Senate and will likely be the subject of debate at the hearing. The hearing is open to the public. It will be held Tuesday, February 12 at 2:00 pm in Room 226 of the Senate Dirksen Office Building.

To read more about all of the sentencing bills FAMM is tracking, click here.

National call-in day to Congress, Feb. 25 Eliminate the crack and powder cocaine disparity!

Join thousands of advocates across the country in calling on Congress to eliminate the federal crack/powder cocaine sentencing disparity on February 25. FAMM will send an ealert to the members on February 25 containing a link to talking points and contact information on your lawmakers. Look for an email on February 25 and check the FAMM website for updates. Also, ask your family and friends to join FAMM's email list so they can participate in the call-in day. Click here to tell a friend about FAMM.

[Courtesy of Families Against Mandatory Minimums]

Please join Families Against Mandatory Minimums (FAMM) and partner organizations on February 26 in Washington, D.C. as we call for change on Capitol Hill!

Ask Congress to support legislation eliminating the crack/powder cocaine sentencing disparity. In the 21 years that mandatory sentences for crack have been in effect, tens of thousands have suffered unjust, disproportionate, and excessive sentences because of the sentencing disparity. It's time for change.

If your loved one was sentenced for crack cocaine or you served time in prison for a crack cocaine offense, we encourage your participation. Please attend the Cracked Justice Lobby Day on February 26 and share your story and photographs with lawmakers to show the human face of excessive sentencing. While none of the bills we will advocate for is likely to affect people who have already been sentenced, your advocacy could positively change the lives of tens of thousands in the future. To learn more about the legislation FAMM is following, please click here.

The Cracked Justice Lobby Day will start in D.C. at 8:30 a.m. with breakfast and a brief training (location to be determined). You will learn tips on how to lobby members of Congress and receive information on the members of Congress you will visit that day. FAMM members have unique stories to tell and we believe everybody should hear them. You will not be limited to visiting your own members of Congress, but will also join people from other states and help them lobby their senators and representatives. For example, you may be paired with a preacher from Kansas or an advocate from Texas.

We will visit lawmakers or staff from the following targeted states: California; Illinois; Kansas; Maryland; Michigan; New York; Oklahoma; Pennsylvania; South Carolina; Texas and Virginia. Don't worry if you are not from one of these states. We still want to see you here.

If you or your family members live in the targeted states and would like to participate but cannot travel to D.C., we still need you! You can:

- Participate in a National Call-In Day on February 25 (look for a FAMM ealert on February 25 with call-in information and talking points.)
- Meet with your member of Congress or Congressional staff at a district office the week of February 18.

Please rsvp for the lobby day by February 8. Space for the lobby day is very limited. If you are interested in participating or want more information on district visits, please call or email Jennifer Seltzer Stitt at (202) 822-6700 x15 or jstitt@famm.org.

Sincerely yours,

Jennifer Seltzer Stitt
FAMM Federal legislative director

There are "good guys" and "bad guys" in Congress. More accurately, perhaps, there are members of Congress who do good things at least some of the time, and members of Congress who do bad things some of the time.

Among the latest good guys are Rep. Sheila Jackson-Lee, Democrat of Texas, and 32 cosponsors of her bill H.R. 4545, the "Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007," introduced 12/13. H.R. 4545 would ameliorate some of the atrocity that is federal mandatory minimum sentencing by reducing crack cocaine penalties to equal those existing for powder cocaine. The Supreme Court ruling and the Sentencing Commission recommendations that came down recently don't help with the mandatory minimums, but only help with sentencing guidelines cases. The bill also includes language intended to focus federal drug enforcement activity on high-level players instead of small-timers as they do now.

One of the latest bad guys is Rep. Lamar Smith, Republican also of Texas, the sponsor of H.R. 4842, introduced 12/19, a nasty bill to reverse the Sentencing Commission's positive ruling in favor of making the recent crack sentencing reductions retroactive. Smith only has eight cosponsors, as compared with Jackson-Lee's 32, and Jackson-Lee has the chairman of the subcommittee of Judiciary that would consider it, Bobby Scott (D-VA). I don't see John Conyers (D-MI) on there yet, the chairman of the Judiciary Committee itself, but he's just as much on our side as Scott is. I don't think Smith has much of a chance on this one, but you never know.

Jackson-Lee has been a strong support of our efforts repealing the Higher Education Act's drug provision, and spoke at our 2005 press conference:

When a Baltimore hustler clothing line manufacturer and barber named Rodney Bethea released a straight-to-DVD documentary about life on the mean streets of West Baltimore back in 2004 in a bid to f

Both the US Supreme Court and the US Sentencing Commission acted this week to redress inequities in the sentencing of federal crack cocaine defendants, but changes in sentencing will be only margin

[Courtesy of The Sentencing Project]

The day after the Supreme Court affirmed a judge's decision to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, the United States Sentencing Commission today voted unanimously to make retroactive its recent guideline amendment on crack cocaine offenses. The USSC's decision now makes an estimated 19,500 persons in prison eligible for a sentence reduction averaging more than two years. Releases are subject to judicial review and will be staggered over 30 years.

The Sentencing Project applauds the USSC for responding at this heightened time of
public awareness about excessive penalties and disparate treatment within the justice system.

"The Commission's decision marks an important moment not only for the 19,500 people retroactivity will impact, but for the justice system as a whole," stated Marc Mauer, Executive Director of The Sentencing Project. "Today's action, combined with the Court's decision yesterday, restores a measure of rationality to federal sentencing while also addressing the unconscionable racial disparities that the war on drugs has produced."

The Sentencing Project estimates that once the sentencing change is fully implemented, there will be a reduction of up to $1 billion in prison costs. Because African Americans comprise more than 80% of those incarcerated for crack cocaine offenses, the sentencing reform will also help reduce racial disparity in federal prisons.

The Commission sets the advisory guideline range that federal judges use when sentencing defendants. In May the Commission recommended statutory reforms and proposed to Congress an amendment to decrease the guideline offense level for crack cocaine offenses. The amendment went unchallenged by Congress and went into effect on November 1st. The Commission's action today makes that guideline change retroactive to persons sentenced prior to November 1st.

The guideline changes do not affect the mandatory minimum penalties that apply to crack cocaine, which can only be addressed through Congressional action.

"Justice demands that Congress take the next step and eliminate the harsh mandatory minimums for low-level crack cocaine offenses," said Mauer.

The Commission's vote comes a day after the United States Supreme Court ruled 7-2 in Kimbrough v. United States that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1 quantity disparity between powder and crack cocaine was permissible. In June, Sen. Joseph Biden introduced the Drug Sentencing Reform and Kingpin Trafficking Act of 2007, legislation which would equalize the penalties for crack and powder cocaine offenses. Biden's bill, S. 1711, aims to shift federal law enforcement's focus from street-level dealers towards high-level traffickers.

The sentencing disparity that punishes offenders 100 times worse for crack than for powder cocaine has taken a double hit this week. First the Supreme Court ruled 7-2 that judges may depart from unreasonable federal sentencing guidelines. Then, today, the U.S. Sentencing Commission voted to make the recently revised sentencing guidelines retroactive, meaning that incarcerated offenders may request early release.

Today in an historic vote, the Commission unanimously agreed to allow prisoners serving crack cocaine sentences to seek sentence reductions that went into effect on November 1. Retroactivity will affect 19,500 federal prisoners, almost 2,520 of whom could be eligible for early release in the first year. Federal courts will administer the application of the retroactive guideline, which is not automatic. Courts may refuse to grant sentence reductions to individuals if they believe they could pose a public safety risk.

"The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced," said Julie Stewart, president and founder of FAMM. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more - mothers, fathers, daughters and sons - who anxiously wait for them to return home," said Stewart. [FAMM]

It took 20 years to even begin taking the teeth out of this vicious law, but it's clear we've now crossed a threshold. Once the curtain was pulled back and the utter racism and ignorance that defined federal cocaine sentencing was revealed for what it was, we witnessed leading politicians jumping on the bandwagon in favor of reform.

So often, we're told by fair-weather supporters of this work that we're naïve; that the power structure forever feeds on the misery of the downtrodden; that the insatiable prison industrial complex and its carnivorous lobbyist minions will always call the shots and that we're pissing in the wind if we think the truths we speak will find traction amidst the marketplace of foul and corrupt ideas that dominate the political culture in our nation's capital.

Indeed, this is a steep uphill battle. But in so many ways, we've moved beyond the initial stage of demonstrating the need for change. They know. Our mission now is to help those in power convert these observations into ideas, then into persuasive words, and finally into decisive actions. Politicians are not always blind to right and wrong, rather they hedge their bets and often fear the political consequences of true leadership above the social consequences of intransigence.

These matters are far from resolved, but today brought hope to 19,500 non-violent drug offenders and their families. It is a victory for justice, a rebuke of the racist drug war doctrine, and, with patience and some luck, a humble sign of bigger things to come.

[Ed: Good to see the vote was unanimous -- someone tell Hillary Clinton. I heard the executive director of the Sentencing Commission speak at a conference last spring, and she was very passionate about wanting to see good things happen. It looks like the commissioners felt the same way. I've pasted here a few releases and announcements from various groups about this below. - Dave]

News Release

U.S. Sentencing Commission
One Columbus Circle NE
Washington, DC 20002-8002

For Immediate Release
December 11, 2007

U.S. SENTENCING COMMISSION VOTES UNANIMOUSLY TO APPLY AMENDMENT RETROACTIVELY FOR CRACK COCAINE OFFENSES

Effective Date for Retroactivity Set for March 3, 2008

WASHINGTON, D.C. (December 11, 2007) — The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008. Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.

On November 1, 2007, after a six-month congressional review period, the Commission’s amendment to the Federal sentencing guidelines for crack cocaine offenses took effect. The amendment was intended as a step toward reducing some of the unwarranted disparity currently existing between Federal crack cocaine and powder cocaine sentences. The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders, as this amendment could.

The Commission made its decision on retroactivity of the crack cocaine amendment after months of deliberation and years of examining cocaine sentencing issues. It solicited public comment on the issue of retroactivity and received over 33,000 letters or written comments, almost all of which were in favor of retroactivity. Last month, it held a full-day hearing on the issue of retroactivity and heard from key stakeholders in the federal criminal justice community.

The Commission considered a number of factors during its deliberations, including the purpose for lowering crack cocaine sentences, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment. Mindful of public safety and judicial resource concerns, the Commission today issued direction to the courts on the limited nature of this and all other retroactive amendments and on the need to consider public safety in each case. The Commission delayed the effective date of its decision on retroactivity in order to give the courts sufficient time to prepare for and process these cases.

The Commission’s actions today, as well as promulgation of the original amendment for crack cocaine offenses, are only a partial step in mitigating the unwarranted sentencing disparity that exists between Federal powder and crack cocaine defendants. The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy. The Commission has consistently expressed its readiness and willingness to work with Congress and others in the criminal justice community to address this very important issue.

The bipartisan United States Sentencing Commission, an independent agency in the judicial branch of the federal government, was organized in 1985 to develop national sentencing policy for the federal courts. The resulting sentencing guidelines help to ensure that similar offenders who commit similar offenses receive similar sentences.

http://www.ussc.gov/PRESS/rel121107.htm

For Immediate Release
Date: December 11, 2007

Sentencing Commission votes in favor of crack cocaine retroactivity

WASHINGTON, D.C.: Families Against Mandatory Minimums (FAMM), the nation's leading sentencing reform organization with 13,000 members -- many of whom are incarcerated people and their families -- praises the U.S. Sentencing Commission for its courage and leadership on improving crack cocaine sentencing policies for future defendants and current prisoners.
Today in an historic vote, the Commission agreed to allow prisoners serving crack cocaine sentences to seek sentence reductions that went into effect on November 1. Retroactivity will affect 19,500 federal prisoners, almost 2,520 of whom could be eligible for early release in the first year. Federal courts will administer the application of the retroactive guideline, which is not automatic. Courts may refuse to grant sentence reductions to individuals if they believe they could pose a public safety risk.

"The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced,” said Julie Stewart, president and founder of FAMM. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more - mothers, fathers, daughters and sons - who anxiously wait for them to return home," said Stewart.

Many FAMM members, including Lamont and Lawrence Garrison, will benefit from retroactivity. Arrested just months after graduating from Howard University, Lamont received 19 years and Lawrence received 15 years, respectively, after being accused of conspiring to distribute crack and powder cocaine. Both brothers could receive sentence reductions of between three and four years.

The U.S. Sentencing Commission has repeatedly advised Congress since 1995 that there is no rational, scientific basis for the 100-to-1 ratio between crack and powder cocaine sentences. The Commission has also identified the resulting disparity as the "single most important" factor in longer sentences for blacks compared to other racial groups.

Yesterday, the Supreme Court ruled that judges can consider the unfairness of the 100-to-1 ratio between crack cocaine and powder cocaine sentences and may impose a sentence below the crack guideline in cases where the guideline sentence is too severe.

However, neither the new guideline nor its retroactivity changes the statutory mandatory minimums that retain the 100-to-1 quantity disparity between crack and powder cocaine. "To insure equal justice for all defendants, Congress must act to address the mandatory minimums that created the cocaine sentencing disparity in 1986," said Stewart.

FAMM spearheaded the effort to make the crack cocaine guideline change apply to people already in prison, helping generate over 33,000 letters to the Sentencing Commission in support of retroactivity. FAMM members from across the country also attended the Commission's public hearing on retroactivity in Washington, D.C. on November 13 and the vote on December 11, bearing photographs of their incarcerated loved ones.

Families Against Mandatory Minimums (FAMM) advocates for fair and proportionate sentencing laws. For more information, visit www.famm.org or email media@famm.org.

UNITED STATES SENTENCING COMMISSION APPROVES CRACK REFORM FOR FEDERAL PRISONERS

The day after the Supreme Court affirmed a judge's decision to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, the United States Sentencing Commission today voted unanimously to make retroactive its recent guideline amendment on crack cocaine offenses. The USSC's decision now makes an estimated 19,500 persons in prison eligible for a sentence reduction averaging more than two years. Releases are subject to judicial review and will be staggered over 30 years.

The Sentencing Project applauds the USSC for responding at this heightened time of public awareness about excessive penalties and disparate treatment within the justice system.

"The Commission's decision marks an important moment not only for the 19,500 people retroactivity will impact, but for the justice system as a whole," stated Marc Mauer, Executive Director of The Sentencing Project. "Today's action, combined with the Court's decision yesterday, restores a measure of rationality to federal sentencing while also addressing the unconscionable racial disparities that the war on drugs has produced."

The Sentencing Project estimates that once the sentencing change is fully implemented, there will be a reduction of up to $1 billion in prison costs. Because African Americans comprise more than 80% of those incarcerated for crack cocaine offenses, the sentencing reform will also help reduce racial disparity in federal prisons.

The Commission sets the advisory guideline range that federal judges use when sentencing defendants. In May the Commission recommended statutory reforms and proposed to Congress an amendment to decrease the guideline offense level for crack cocaine offenses. The amendment went unchallenged by Congress and went into effect on November 1st. The Commission's action today makes that guideline change retroactive to persons sentenced prior to November 1st.

The guideline changes do not affect the mandatory minimum penalties that apply to crack cocaine, which can only be addressed through Congressional action.

"Justice demands that Congress take the next step and eliminate the harsh mandatory minimums for low-level crack cocaine offenses," said Mauer.

The Commission's vote comes a day after the United States Supreme Court ruled 7-2 in Kimbrough v. United States that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1 quantity disparity between powder and crack cocaine was permissible. In June, Sen. Joseph Biden introduced the Drug Sentencing Reform and Kingpin Trafficking Act of 2007, legislation which would equalize the penalties for crack and powder cocaine offenses. Biden's bill, S. 1711, aims to shift federal law enforcement's focus from street-level dealers towards high-level traffickers.

[Courtesy of The Sentencing Project]

SUPREME COURT RULES THAT JUDGES MAY CONSIDER HARSHNESS OF CRACK POLICY IN SENTENCING

Decision Comes on Eve of U.S. Sentencing Commission Vote to Reduce Crack Sentences for Prisoners

The Supreme Court ruled 7 to 2 today that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1quantity disparity between powder and crack cocaine was permissible. Justice Ruth Bader Ginsburg wrote the decision in the case, Kimbrough v. U.S. (06-6330).

"At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, Executive Director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses."

The Court's decision in Kimbrough comes at a time of unprecedented interest in reforming the mandatory minimum sentencing policy for crack cocaine offenses. Bipartisan legislation has been introduced in Congress and hearings are expected early next year. Moreover, tomorrow, the U.S. Sentencing Commission is expected to vote on whether its recent sentencing guideline reduction for crack cocaine offenses will apply retroactively to people currently serving time in prison.

Review today's decision in Kimbrough at: http://www.scotusblog.com/wp/wp-content/uploads/2007/12/06-6330.pdf