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April 27, 2007

USSC provides (yummy?) half-a-loaf crack amendment

As detailed in this official press release, the US Sentencing Commission has now completed a significant set of proposed amendments to the federal sentencing guidelines.  And though there are lots of big and small stories in all the proposed amendments, the biggest news concerns a proposed amendment to the crack guideline (and a coming report).  Here is the crack discussion of the USSC's press release:

[T]he Commission unanimously announced today that it will submit to Congress on or before May 15, 2007, a report on federal cocaine sentencing policy.  The report will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  The Commission also will make recommendations to Congress in the report for modifications to the statutory penalties for crack cocaine offenses.  At today's meeting, the Commission expressed its firm desire that this report will facilitate prompt congressional action addressing the 100-to-1 crack-powder drug quantity ratio.

The Commission also voted today to promulgate an amendment that modifies the penalties for crack cocaine offenses.  The Commission described the problems associated with the 100-to-1 drug quantity ratio as so urgent and compelling that it promulgated the guideline amendment as a measure to alleviate some of those problems.  The statutory penalties for crack cocaine offenses require a five-year mandatory minimum sentence for a first-time trafficking offense involving 5 grams or more of crack cocaine, and a ten-year mandatory minimum penalty for a first-time trafficking offense involving 50 grams or more of crack cocaine.  When Congress established these penalties in 1986, the Commission responded by incorporating the statutory mandatory minimum sentences into the guidelines to provide guideline sentencing ranges that are above the statutory mandatory minimum penalties. First-time offenses involving 5 grams or more of crack cocaine receive a sentencing guideline range of 63 to 78 months, and first-time offenses involving 50 grams or more of crack cocaine receive a sentencing guideline range of 121 to 151 months, before accounting for other relevant factors under the guidelines.

The Commission's amendment modifies the guideline drug quantity thresholds to provide guideline sentencing ranges that include the statutory mandatory minimum penalties for crack cocaine offenses. Accordingly, under the amendment, a first-time trafficking offense involving 5 grams of crack cocaine will receive a guideline sentencing range of 51 to 63 months, and a first-time trafficking offense involving 50 grams or more of crack cocaine will receive a guideline sentencing range of 97 to 121 months, before accounting for other relevant factors under the guidelines.  Under the statutory mandatory minimum penalties, however, a five- and ten-year sentence will still be required, respectively.  As a result, the Commission's amendment provides some relief to crack cocaine offenders impacted by the disparity created by federal cocaine sentencing policy.

The Commission emphasized and expressed its strong view that the amendment is only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress.

The text of the Commission's amendments and its accompanying 2007 report to Congress, Cocaine and Federal Sentencing Policy, will be available in the coming weeks on the Commission's website, www.ussc.gov.

This is HUGE news, and pretty encouraging for those long hopeful for significant reforms to the crack guidelines.  And yet, even if/when these amendments become official, there is still a significant crack-powder disparity.  However, the language used in the official USSC press release has me optimistic that the USSC is really ready to rumble with Congress on these issues and that its May 15 report to Congress will be forceful.

Notably, FAMM already has this press release highlighting the mixed, but positive, realities of these major crack sentencing developments:

"While this incremental change is a far cry from the 'equalization' of crack and powder cocaine the Commission recommended in 1995, it is a long overdue first step to improving crack sentences," said Julie Stewart, president of Families Against Mandatory Minimums (FAMM).

The possible ripple effects of this fascinating USSC development on all the on-going work of all the federal sentencing players in each branch cannot be overstated.  Throughout the weekend, I plan to provide branch-by-branch commentary on how the USSC's actions could and should be received.

April 27, 2007 at 09:49 PM | Permalink


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Big time news...great to hear.

Baby steps...

Posted by: SPD | Apr 27, 2007 11:52:51 PM

It should be noted, especially for those not up on the issue, that underlying the discomfort (at least, my discomfort) with the disparity are the disparate, and arbitrary, effects felt by blacks versus whites.

Posted by: rothmatisseko | Apr 28, 2007 2:33:09 AM

Shouldn't that be "half-a-rock," Doug?

Sorry, I couldn't resist. This is progress, but I'm not sure if it will have the desired effect, if Congress (and others) perceives this as a "fix" rather than a "first step." Assuming Congress doesn't shoot down the amendment altogether.

Posted by: JDB | Apr 28, 2007 6:40:48 PM

I am wary of this. We don't need a first step. We need real reform. How many more years will these crack offenders do while waiting for Congress and the Commission to go the second, third and fourth steps, until the crack penalties come down to where they should be, the same as those for powder cocaine?

More here .

Posted by: TalkLeft | Apr 28, 2007 11:04:49 PM

Long overdue, particularly considering that legislation to partially reform the disparity is already under consideration in Congress.

Posted by: ohwilleke | Apr 30, 2007 2:42:23 PM

It amazing how the amendents are not retroactive. When they pass any other laws they make sure to make them retro. You call this a first steps, the steps haven't begun. It does not matter because they will complete the steps (as they call them) when they get ready. There is not a rush on inmates lives all they have is time right!!!

Posted by: jubria | Apr 30, 2007 10:01:52 PM

who wrote this

Posted by: Cait | May 6, 2007 10:23:17 PM

who wrote this

Posted by: Cait | May 6, 2007 10:23:19 PM

Hi my name is mrs Lilly

My husband is serving time in the ferderal prison. for drugs he didn't have. his codefedendt did, But my husband was gharged with what his codefedent did. Don't get me wrong my husband did have his part with his codefedent later that eek when the bus went down. The retroactivity. Needs to go In effect for all.My husband was a first time affored. who was senstence twice for the same crime. A black man yes you did It. And let It ran. Public afforned for him yes But helped put him away. I understand he had a firearm And used It but they act as If he killed the man. My husband with the wrong person at the wrong time. now hes paying a heavy price for It. March 12,1999 was his crim date .someone needs to help our Black man who has falling by the wayside. Do anyone care It could of been your child or grandchild who man the wrong choice. Everyone deserve a second chance In life .

Posted by: Joyce Lilly | Aug 25, 2007 1:49:54 AM

Attention FAMM Members:
Tell the Sentencing Commission to make crack guideline changes retroactive!
Update: The United States Sentencing Commission has extended the deadline for public comment on making the proposed crack guideline changes retroactive (if those changes go into effect on Nov. 1). The new deadline for public comment is Nov. 1, 2007.
On May 1, 2007, the United States Sentencing Commission proposed an amendment to the federal sentencing guidelines that, if enacted, will reduce the base offense level for crack offenses by two levels, resulting in shorter sentences for most crack defendants sentenced after November 1, 2007. FAMM supported the Commission’s proposed amendment to the crack guidelines and also asked the Commission to make the amendment retroactively applicable to those who were sentenced before November 1, 2007. Click here to read more about the proposed guideline amendment.
If the amendment is not rejected by Congress – and we don’t expect it will be – it will go into effect on November 1. Unless the Commission makes it retroactive, however, it will only reduce sentences for defendants sentenced under the crack guideline on or after November 1. But, if the Commission makes the amendment retroactive, prisoners who were sentenced before November 1, 2007 under the sentencing guidelines for crack cocaine offenses can ask their sentencing judges to reduce their sentences as if the reduction had been in effect at the time they were sentenced.
Your chance to write about retroactivity
The Commission has just issued a call for public comment from any interested member of the public on the retroactivity issue. Now is your chance to write to the Sentencing Commission and tell them to ensure that thousands of individuals currently serving unjustifiably harsh sentences for crack have a chance to benefit from the sentence reductions, if the amendment goes into effect on Nov. 1, 2007. All letters are due by November 1, 2007.
FAMM encourages all of its members – particularly those with loved ones serving crack sentences in the federal prison system – to urge the Commission to make the crack amendment retroactively applicable. To help you, we have prepared a letter that you can print out and mail to the Commission. You can personalize the letter to include the name of your loved one who is serving a sentence for a crack offense, or send it as is.
We will also be mailing out postcards about this campaign to our members who do not have access to the internet. Numbers count, so please ask your family and friends to write to the Commission in support of retroactivity. Typed or handwritten letters are best, and don't forget to include your contact information in the letter.
Take action!
Click here to use the FAMM action center to send your letter.
If you write your own letter, please send it to: United States Sentencing Commission, One Columbus Circle, NE, Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Public Affairs - Retroactivity Public Comment.
All letters are due by November 1, 2007.
Should the amendment be made retroactive, FAMM will provide guidance and resources for prisoners who would be eligible to petition the courts for reduced sentences.
If you have questions about what this means, please call (202) 822-6700 and ask to speak to Molly Gill.

Posted by: Rita | Oct 3, 2007 2:55:31 PM

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