Reverse Unfair Crack Sentencing

I wonder if our sentencing commission will get this type of support. The first meeting will be on January 11. So I guess we'll see.

A federal commission should make changes to crack-sentencing laws retroactive, freeing many who were jailed in the 1980s.

By The Denver Post

Article Last Updated: 11/19/2007 06:43:21 PM MST

Disproportionately harsh federal prison sentences for crack cocaine offenders is an injustice that has been smoldering for two decades.

The U.S. Sentencing Commission, a presidentially appointed body that sets federal court policies and practices, recently changed those crack penalties so they are in keeping with punishments for other drugs.

But the commission still is contemplating whether to make those changes retroactive so that 19,500 prisoners serving unfairly long sentences can petition to be released. Of them, 115 were sentenced in Colorado.

The commission took one step in the right direction and we think it ought to take another and give those prisoners a chance at justice.

If the commission makes the change retroactive, it wouldn't be the first time. It has done so with changes to sentencing laws involving LSD, marijuana cultivation and OxyContin, a prescription painkiller.

This circumstance is different because whether intentionally or not, harsh crack sentences have had an unfair effect on black communities.

Many crack offenders are poor black people, in part because of the drug's cheap price. Harsh crack penalties are often among the reasons cited for the escalating number of black people incarcerated in this country.

An illustration of how disproportionate punishments for crack crimes had been can be found in comparing punishments for powder cocaine. Though the drugs have the same chemical properties, possession and dealing charges for powder aren't nearly as severe. Before the recent changes, a first-timer selling just 5 grams of crack, which equals 10 to 50 doses, had gotten the same five-year mandatory sentence as dealers pushing 500 grams of powdered cocaine, which is 2,500 to 5,000 doses.

Crack sentences were passed during a panicky stretch in the 1980s when it was a scary new drug. The laws may not have been intended to discriminate, but they did and it's time to right that wrong.

The Bush administration opposes retroactivity, saying communities would suffer from the release of large numbers of drug offenders. And Congress could overturn any such proposal from the commission.

But we like the reasoning of U.S. District Judge Reggie Walton, who last week testified before the commission on behalf of the federal judiciary. You may recall that Walton is the Bush appointee who gave Scooter Libby a 30-month prison term for obstructing justice in a probe over the leak of a CIA agent's identity. Walton could hardly be described as soft on crime. (The president ultimately commuted the sentence). Walton said in contemplating retroactivity, he struggled with concerns about public safety and extra work for the federal court system. But in the end, those worries were outweighed by the fundamental unfairness of the situation. He's right.

A Sentencing Commission analysis says retroactivity could reduce prison sentences of 19,500 inmates by an average of 27 months. Many have been in prison so long they are older than 40, which reduces the probability they'd return to crime.

Releases wouldn't happen automatically. Prisoners would petition the courts and prosecutors would have a good chance of denying release for serious, violent offenders.

It's only fair that the small-time users and dealers who got caught up in draconian sentences should have the chance to have their sentences reduced to a term that fits the crime.

The Denver Post