AG Holder tries to correct drug sentencing disparity

U.S. Attorney General Eric Holder testified last week before the United States Sentencing Commission to support advocating retroactive application of the Fair Sentencing Act of 2010.

The law, enacted last August by President Barack Obama, dramatically reduces the 100-to-1 sentencing disparity between crack and powder cocaine. Since the 1980s, a person found in possession of just five grams of crack would face a mandatory five-year minimum prison sentence, while it would take 500 grams of powder cocaine to warrant the same punishment.

The old 100-to-1 sentencing disparity was also seen as racially discriminatory. According to Michelle Alexander, law professor and author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” approximately 93 percent of all convicted crack offenders are black, while powder cocaine offenders are largely white.

The Fair Sentencing Act brings the disparity down to 18-to-1; instead of five grams of crack, a person would have to be found with 28 grams to receive the five-year minimum sentence.

But the law only affects new offenders, not those already in prison. A retroactive implementation would allow those sentenced before the 2010 law to be subject to the new sentencing guidelines.

“Although the Fair Sentencing Act is being successfully implemented nationwide,” Holder said at the hearing, “achieving its central goals of promoting public safety and public trust — and ensuring a fair and effective criminal justice system — requires the retroactive application of its guideline amendment.”

“As years of experience and study have shown, there is simply no just or logical reason why their [crack offenders] punishments should be dramatically more severe than those of other cocaine offenders,” he continued.

If enacted, an estimated 12,000 inmates nationwide could see their sentences reduced by an average of three years, according to the Associate Press. However, Holder stressed that violent offenders would not be eligible for sentencing reduction.

To back his position, the attorney general cited the success of the 2008 retroactive “crack minus two” amendment that brought the base offense level of crack down two levels. While some in the Justice Department predicted the move would lead to rising crime rates, a recent study by the United States Sentencing Commission shows that “those whose sentences were reduced after that amendment was applied retroactively actually had a slightly lower rate of recidivism than the study’s control group,” according to Holder.

But Holder also drew upon his own life experience to support the measure. “This issue is deeply personal to me,” he said. “While serving on the bench, here in Washington, D.C., in the late eighties and early nineties, I saw the devastating effects of illegal drugs on families, communities, and individual lives. I know what it is like to sentence young offenders to long prison terms, and I did so to protect the public from those who were serious threats and who had engaged in violence.”

“However,” he continued, “throughout my tenure as this city’s U.S. Attorney, I also saw that our federal crack sentencing laws did not achieve that result. Our drug laws were not perceived as fair and our law enforcement efforts suffered as a result.”

While many at the hearing supported Holder’s position, David Hiller, national vice president of the Fraternal Order of Police, voiced his disagreement. “The FOP strongly opposes any retroactive application of the guidelines as it would allow for the release of thousands of convicted drug offenders into communities where state and local law enforcement are already under immense pressure,” he said. “These criminals are responsible for creating and feeding the addiction of an estimated 1.4 million Americans. Early release of these criminals would serve only to further the destruction of our communities from cocaine.”

The NAACP later commended the attorney general’s remarks. “The retroactive application of these guidelines would go a long way in reversing the inequity created in the prison system when judges did not have the discretion to mitigate sentencing for first-time offenders, nonviolent offenders, or special circumstances,” said Robert Rooks, director of the NAACP’s Criminal Justice Program.

The United States Sentencing Commission is expected to rule on this measure in the upcoming months. If passed, it would then move to Congress.

The prison population of the United States now exceeds 2 million, and represents the highest incarceration rate in the world. Before the War on Drugs commenced in the 1980s, it stood at just 300,000 and drug convictions account for the majority of the increase.