Fairer Sentencing
By Asa Hutchinson and Laura W. Murphy | May 24, 2022 12:33 pm

In April 2009, the Obama Administration’s Justice Department wisely reversed its past policy and called for the end of the 100:1 sentencing disparity between crack and powder cocaine offenses.  The decades-old disparity – just five grams of crack cocaine triggered the five year mandatory minimum while it took 500 grams of powder cocaine to trigger the same penalty – resulted in manifest injustices.

Congress also showed courage and leadership by ultimately passing the Fair Sentencing Act, a compromise reform bill that reduced the disparity to 18:1, but, unfortunately, this new law was not made retroactive.  As a result, there are thousands in prison who have been sentenced under what is widely agreed was an unfair sentencing law but who received no relief from last year’s crack sentencing reforms.

The U.S. Sentencing Commission will soon consider whether to apply the new crack guidelines retroactively so that fairness will apply both to future offenders and to those who were sentenced under the old law.  While those of the political left and right rarely agree on matters of policy, the fact that we – a representative of the ACLU and a former federal prosecutor – can both support this change by the Sentencing Commission demonstrates vividly the logic and fairness of the change.

The Justice Department will soon weigh in with the Commission about whether the reduced crack guidelines should be made retroactive. We hope the Justice Department will continue to guide the reform on this issue by supporting retroactivity.

While testifying about the 100:1 sentencing disparity before the Senate Judiciary Committee in April 2009, Assistant Attorney General Lanny Breuer said, “Public trust and confidence are essential elements of an effective criminal justice system – our laws and their enforcement must not only be fair, but they must also be perceived as fair. The perception of unfairness undermines governmental authority in the criminal justice process.” Perhaps no federal policy over the past 30 years did more to undercut respect for the criminal justice system among communities of color than the crack-powder disparity. Though the majority of crack users are white, blacks were far more likely to be prosecuted and to receive lengthy mandatory prison sentences that were designed for major drug kingpins.

Members of both parties candidly admitted that the original disparity was a mistake and was hastily passed in 1986 with little scientific support. Last year, a nearly unanimous Congress agreed with the Department that the crack disparity had to be reformed and finally acted to do so.

In the past, the U.S. Sentencing Commission has addressed policy mistakes just as private manufacturers would be expected to correct design flaws - it fixed them and adopted its own version of product recall: retroactivity.  The Commission acted in 1993 to make the newly lowered LSD guideline retroactive. In 1995, it made reductions to the marijuana guideline retroactive. And just four years ago, the Commission made a modest reduction in crack sentences retroactive. When the Commission acted on the 2007 reduction it responded to concerns lodged by the Bush Justice Department by implementing new rules directing judges to consider whether an early release would endanger the community.

Requiring prisoners to petition a federal court for a sentence reduction, and allowing prosecutors to make objections – including those based on public safety concerns – is another key filter. Since 2008, hundreds of offenders who were eligible for early release have been denied. Even those who received reductions did not escape punishment, but rather had already served lengthy sentences. It is our hope that the Sentencing Commission will apply the new cocaine sentencing guidelines retroactively and that each case will be reviewed, as before, in terms of public safety before any reduction in sentence will take effect.

We both agree with the Department of Justice that our nation’s justice system suffers when it creates a perception of unfairness. Drug penalties that overwhelmingly discriminated on the basis of race are one example of unfairness that the Justice Department has rightly fought to correct. A strong perception of inequity will remain, however, if the individuals who were punished under the discriminatory policy are not provided an opportunity for relief. In fact, failing to extend the benefits of the new law to those whose experiences gave rise to it would not only be unfair, it would be cruel.

The Justice Department should continue to provide the moral leadership it has to date on crack sentencing fairness by urging the U.S. Sentencing Commission today (and Congress tomorrow) to apply the new, fairer crack penalties retroactively.

Asa Hutchinson, a former House member from Arkansas,  is a former U.S. Attorney for the Western District of Arkansas,  and administrator of the Drug Enforcement Administration from 2001-2003. Laura W. Murphy is the director of the American Civil Liberties Union (ACLU) legislative office in Washington, D.C.


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