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Fair Sentencing Act May Mean Early Release for Some With Crack Sentences

In the 1980s, crack-cocaine use was seen as a problem of epic proportions. The conversion of powder cocaine to crack transformed what had been an expensive drug into a much cheaper, more widely available and – in the beginning – more potent drug.

From the creation of a Cabinet-level Drug Czar to additional legislation from Congress, a variety of actions were demanded by the public to stop the perceived drug crime epidemic. Part of the response by Congress was increased penalties for crack-possession convictions, including mandatory minimum prison sentences that were significantly longer than the sentences imposed for similar offenses involving powder cocaine.

Widely Disproportionate Sentences

The disparity of the sentences resulting from a crack vs. powder cocaine conviction were described by an attorney in the U.S. Public Defender’s office, A.J. Kramer, in testimony from 2008 Senate hearings on reforming cocaine sentencing laws:

“The sentence for possessing or distributing 5 grams of crack is the same as the guideline sentence for dumping toxic waste knowing that it creates an imminent danger of death, the same as that for theft of $7 million, and double that for aggravated assault resulting in bodily injury.”

By comparison, a conviction for possession of 5 grams of powder cocaine carried a guideline sentence of 10-16 months’ incarceration.

This disproportion was finally rectified with the passage of the Fair Sentencing Act of 2010. President Obama signed the bill on August 3, 2010, and the law reduced the 100 to 1 sentencing ratio disparity to 18 to 1.

Other changes in the Fair Sentencing Act include making the five-year mandatory minimum prison sentence only applicable to possession of at least 28 grams of crack cocaine and applying the mandatory minimum 10-year sentence to possession of 280 grams of crack. The law also eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine.

New Sentencing Laws May Be Applied Retroactively

The new sentencing rules went into effect in November 2011, and a decision made by the United States Sentencing Commission in June allows the guidelines to be applied retroactivity. This means that many people sentenced under the old sentencing guidelines may be eligible for release. In fact, the New York Times reported that up to 13,000 people could be eligible for early release under the new crack sentencing law.

While critics of the old law were elated by changes made by the Fair Sentencing Act, there is still a large disparity between the sentences for crack and powder cocaine convictions, and the guidelines still have a disparate racial impact.

For more information on the Fair Sentencing Act and drug crimes, contact a knowledgeable criminal defense attorney in your area.