Fair Sentencing Act Reduces Disparity for Cocaine Sentences

September 25, 2010

Fair Sentencing Act Reduces Disparity for Cocaine Sentences

In August, President Obama signed the Fair Sentencing Act into law. While the act does not eliminate federal sentencing disparity between crack and powder cocaine offenses, the mere fact that it occurred is a surprising criminal justice reform. Ten years ago, those working to repeal the 100-to-1 sentencing disparity were dismissed as "soft on crime."

The 1986 law was enacted at a time when many expected the crack cocaine epidemic affecting minority communities would cause a broader crime wave, which never developed. Later reports from the US Sentencing Commission provided evidence that much of the thought underlying the 1986 law was wrong.

President Obama Supported and Signed the Bill

President Obama had campaigned against great difference in sentencing, saying it "cannot be justified and should be eliminated."

The House approved the bill reducing the disparities between mandatory crack and powder cocaine sentences, and President Obama signed it in August.

And he noted that the sentencing disparity "has disproportionately filled our prisons with young black and Latino drug users." He cited figures that African Americans serve almost as much time for drug offenses -- 58.7 months -- as whites do for violent offenses -- 61.7 months.

Powder cocaine sentences have been far less severe. Under the old law, a person convicted of possession of 5 grams of crack cocaine would receive the same a mandatory minimum five-year prison sentence as a person convicted of trafficking with 500 grams of powder cocaine.

The new legislation changes the amount to 28 grams, or an ounce, of crack before the five-year sentence applies.

One of the more surprising aspects of the law was that it passed with bipartisan support. It's been a long time in process. As Vanita Gupta, Director of the ACLU's Center for Justice commented, "2010 saw a bipartisan bill aimed at reforming a mandatory minimum actually get through Congress and receive the president's signature for the first time since the Nixon administration."

Supporters of the new law next want to work on the issue of retroactivity. The new law only affects those convicted of cocaine possession after August 3, 2010. It does not change the sentences of the tens of thousands in prison who were sentenced under the old law. A possible solution would be for some of the existing sentences to be commuted by the President.

Old Law's Flawed Reasoning

The rationale behind the 1986 act was in part rooted in the "get-tough" attitude that developed in the late 1960 and in the early 1970s resulted in the New York state legislation known as the Rockefeller Drug Laws. The Sentencing Project noted in a recent report:

In 1973, Gov. Nelson Rockefeller pushed a harsh program of mandatory minimum drug laws through the New York State Legislature. Under the Rockefeller Drug Laws, sale of just two ounces, or possession of just four ounces, of a narcotic drug was made a Class A felony, carrying a minimum sentence of 15 years and a maximum of life in prison.

Together, these harsh sentencing laws flooded New York's prisons with people convicted of lower-level drug offenses. Street drug enforcement was intensified from the mid-1980s through the 1990s, and annual drug commitments to prison, which had totaled 470 in 1970, rose to 8,521in 1999.

New York's crack-down on drug crime proved to be extremely expensive, driving the proportion of people in state prison for drug offenses up from just 11 percent when the Rockefeller Drug Laws were enacted, to a high of 34 percent. And the impact on communities of color was stark: African Americans and Latinos constitute 90 percent of all people incarcerated for a drug offense.

New York began to modify the Rockefeller Drug Law in the 1990s as its prison population mushroomed. By making changes to their criminal justice system, including sentences and the use of parole and "merit time" generated savings for New York between 1997 and 2006 of $372 million. New York's prison system held 58,456 prisoners at the end of 2009, down from 72,899 in 1999.

States Can No Longer Afford to Pay the Price

The "Casablanca solution" of rounding up all the 'usual suspects,' guilty or not, simply doesn't work anymore, as legislatures are coming face-to-face with massive deficits and virulent anti-tax movements.

States simply cannot afford to keep building ever more prisons to warehouse people. The Texas Department of Criminal Justice (TDCJ) has a budget request for 2012-13 of $6.55 billion--as large as the gross domestic product of Nicaragua and larger than the GDP of 40 countries.

New Jersey's Experience with Disparity

New Jersey, likewise, has had problems with its prisons. The Department of Corrections has a $1 billion dollar budget, with about a third spent on nonviolent offenders. This is a consequence of the "get-tough" polices which have resulted in a third of those in prison convicted for "drug free zone" offenses.

The drug free zones in densely built cities create an "urban effect." The zones extend out from each location, but because of the close proximity of schools, parks and public housing, the zones overlap, making whole sections of cities "drug free zones" and subjecting anyone arrested there to mandatory 3-year sentences. Of those, 96% are people of color, making New Jersey third in the nation for racial disparity of prison population.

New Jersey's legislature, with the support of eight former Attorneys General, reformed its mandatory sentences for these "drug free zones." The result of this and other reforms has been both a savings for the taxpayer and an overall drop in violent crime.

If you have been indicted for a drug charge, speak with an experienced criminal defense attorney who can advise how these changes to the law may affect your sentence.

Article provided by Alan M. Liebowitz
Visit us at www.aliebowitz.com