Justice for Eight in Crack-Cocaine Sentencing. Thousands to Go.

Clemency not only provides a measure of justice for people who have been unnecessarily incarcerated, it curbs huge costs to taxpayers.

In December, President Obama commuted the sentences of eight people serving harsh prison terms on crack-cocaine convictions. Why?

Until recently, those who possessed just five grams of crack cocaine received the same five-year sentence as those who distributed 500 grams of powder cocaine; those who used 50 grams of crack received the same sentence as traffickers of 5000 grams of powder cocaine. This 100-to-1 quantity ratio between two chemically identical substances disproportionately hurt African Americans and Latinos because of federal law enforcement’s top-heavy focus on inner-city communities.

The president’s commutations are a major step forward in the ongoing saga to end injustice in cocaine sentencing. This newest chapter comes in the wake of other adjustments that have successfully chipped away at these biased disparities. Three years ago, the Fair Sentencing Act reduced the discredited 100-to-1 ratio between crack and powder cocaine to the more reasonable, but still insufficient, 18-to-1 ratio. The U.S. Sentencing Commission amended its guideline ranges to assure consistency with the provisions of the new act and applied its guidelines retroactively.

The Supreme Court, consistent with revised Department of Justice policy, agreed that cases pending in the pipeline between passage of the new law and sentencing would receive the benefit of the new law. However, only Congress or the president can remedy the plight of the remaining people whose harsh sentences occurred prior to the Fair Sentencing Act.

While momentous, the eight commutations represent only the tip of the iceberg of cases left behind when the Fair Sentencing Act became law. Several thousand cases of men and women in similar situations still await relief. Obama acknowledged that his commutations were an important first step and that “it must not be the last.”

Because of the sheer volume of cases and the impracticality of the current manner of processing, the Open Society Foundations have strongly urged the president to establish a review board for these old crack-cocaine cases. The board would make recommendations to the president to commute additional sentences, consistent with current law. Pending legislation in Congress could grant retroactivity to this class of people.

But the president can and should continue to exercise his unique power and commute sentences from this entire class, as well as from other appropriate cases. Robust use of clemency would not only address critical fairness issues efficiently and expediently, it would also curb the huge costs to taxpayers for people who continue to be unnecessarily incarcerated.

Open Society applauds the president for using his clemency power to achieve the important public policy goal of bringing attention to those still imprisoned from a policy nearly universally discredited as unfair, inconsistent, and fiscally unsound. Leading up to passage of the Fair Sentencing Act was an outpouring of support from across the political spectrum, including the progressive and conservative communities, the federal judiciary and prosecutors, law enforcement, and family members.

We hope this renewed focus will inject fresh urgency into the national discourse, with similar energy that brings about systemic reform. 

1 Comment

Intent versus Cocaine Form:
During my experiences as a chemist in the litigation of controlled drug cases I have observed the change of sentencing for cocaine violations by form. Before the onset of cocaine crack (cocaine base or the non-salt form) marketing only the cocaine powder (cocaine hydrochloride or salt form) was used. Cocaine powder was manufactured outside of the United States and was imported -- it was ingested by 'snorting' through the nose, usually without deadly consequences. Crack cocaine, on the other hand, is processed domestically from powder cocaine; however, its use can lead to deadly consequences. Accordingly, apparent efforts were made by the government to establish marketing control of cocaine through sentencing guidelines. It appears that those guidelines were not based on the willful intent of a crack marketer or seller to promote deadly harm -- but based on the physical form of cocaine. Is it possible that law is now going through a reassessment in its agreement with science -- that 'crack' and 'powder cocaine' are 'cocaine'? Further, is law now faced with an additional burden of determining the predisposition of the seller -- knowledge of possibly deadly harm of 'crack' versus 'powder cocaine'?

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