A Collaboration with the University of Pittsburgh

Fair Sentencing Act positive model for bipartisan reform

Julie Stewart [President, Families Against Mandatory Minimums]: "Thursday, the U.S. House of Representatives unanimously approved a bill to reduce the infamous 100:1 sentencing disparity between crack and powder cocaine offenses. The Senate approved the bill in March. Today, President Obama finished the job by signing the bill, ending a nearly 20-year campaign by sentencing reform advocates to undo this outrageous inequity in federal sentencing law.

The word "historic" gets bandied around quite a bit in Washington, but it fits here. After all, the bill repeals a mandatory minimum sentence - for simple crack possession - for the first time since the Nixon Administration. Put another way, half of the staff at FAMM had not yet been born when Congress last reversed a mandatory minimum. And for those of us who have been engaged in the sentencing reform fight for a couple decades, bipartisan reform has been rare. This is the first overwhelming, bipartisan victory on an issue like this in the past 15 years, especially so close to a contentious election.

Members of Congress from both political parties deserve enormous credit for casting aside the politics of fear that mark so many debates over criminal justice reform. Some of us hope that this victory signals the beginning of a new spirit of bipartisanship that will lead to even more success for commonsense sentencing reforms. The first test, in my view, is whether Congress will finish the job on crack reform by applying the provisions of the new law retroactively.

The reason why the crack reform bill sailed unanimously through both chambers of Congress was that there was no legitimate basis - public safety or otherwise - to maintain the disparity. Congress was not saying that times and circumstances change and thus so should the crack law. Rather, the members, including those members serving in 1986 when the disparity was created, were quite candid in saying the law was a mistake, a blunder forced by the fear of a crack epidemic, following on the heels of the cocaine overdose of a nationally-recognized basketball star, Len Bias.

Congress should be commended for fixing its 1986 mistake, but its correction will be incomplete if it is not applied to those whose lives were most directly impacted by the error. When an auto company discovers a dangerous defect in its cars, it corrects the flaw in future models and recalls the defective cars. Our government rightly expects corporations to fix their mistakes so that no one is unnecessarily harmed.

The government should hold itself to the same standard, at least in situations where the harm to individuals and families is so great, and the government error is so clear. There will be those who say that applying the new law retroactively will consume significant law enforcement and judicial resources. Of course this is true - especially if done right, i.e. requiring a separate judicial review for every offender to ensure that only those who are not violent or otherwise do not represent a threat to society are let go.

We know this is possible because it's happening right now. Beginning in March 2008, roughly 20,000 crack cocaine offenders became eligible to receive a reduction in their sentence because of changes made in the sentencing guidelines. Their cases are now being reviewed and MANY offenders are being released. You might not have noticed because the sky is not falling.

The amount of time that will be needed for U.S. Attorneys and federal courts judges to review all of these cases is not de minimis. District court caseloads are already high, and U.S. Attorneys have new threats to address. But when these costs are compared with those borne by the individuals, families, and communities affected by 24 years of a ruinous and indefensible sentencing policy enforced and administered by these same U.S. Attorneys and judges, the costs seem relatively small.

Congress was right to ditch the 100:1 crack-powder disparity. It now must finish the job by applying this overdue reform retroactively."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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