December 2007

U.S. Sentencing Commission Makes Amendment Retroactive

The U.S. Sentencing Commission has voted to make retroactive a recent amendment to the Federal Sentencing Guidelines that reduces the penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.

The amendment that went into effect November 1, 2007, modified drug quantity thresholds, adjusting crack cocaine offenses downward by two levels. With the Commission’s decision, the change in sentencing will now apply retroactively to prisoners whose cases are final. Commission analysis estimates that the retroactive guideline amendment could impact more than 19,000 offenders. The average reduction in sentence would be 27 months, and in the first year an estimated 3,804 offenders could be released from prison, according to the Commission.

A Commission statement released following the vote said, “The Commission’s actions today, as well as the promulgation of the original amendment for crack cocaine offenses, are only a partial step in mitigating the unwarranted sentencing disparity that exists between Federal powder and crack cocaine defendants.” The Commission delayed the effective date of its decision in order to give the courts sufficient time to prepare for and process the number of cases that may be filed. The Commission noted that not every crack cocaine offender will be eligible for a lower sentence under the decision, saying, “A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.” That determination, according to the Commission statement, will be based upon many factors, including whether the offender’s sentence would pose a danger to public safety.

In the fall of 2007, the Commission heard public testimony—and received more than 33,000 comments—on the advisability of making two amendments retroactive. Judge Reggie B. Walton (D.D.C.), a member of the Judicial Conference Criminal Law Committee, testified on behalf of the Conference in November hearings held by the Commission. Walton told the Commission that the Criminal Law Committee, after deliberation, had adopted the position that the crack coccaine amendment should be made retroactive.

For at least 12 years, the Commission has recognized defects in federal cocaine sentencing policy, specifically that it takes 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum penalty. The Commission considered the question of whether to amend the crack cocaine guideline to correct those defects. Subsequently, the guidelines for crack cocaine were modified downward by the Commission, and became effective on November 1, 2007.

“Today, the Commission is confronted with the next logical question. It must determine whether the amendment should be made retroactive,” Walton said at the November hearing. According to Walton, it was a matter of weighing fundamental fairness against “serious concerns about community safety and practical implications for the workload of the federal Judiciary.”

In a letter to USSC Chair, Judge Ricardo H. Hinojosa, then-Criminal Law Committee chair Judge Paul Cassell wrote that “while concerned about the impact that retroactivity may have on the safety of communities, a majority of the Committee believes that the Commission’s precedents, and a general sense of fairness, dictate retroactive application. The Committee also believes that the burden to the courts and probation officers associated with resentencing is not a sufficiently countervailing consideration.”

The Office of Probation and Pretrial Services at the Administrative Office already has begun planning, at the Committee’s direction, for the increased workload as the amendment is applied retroactively. The first of several expected planning meetings will be held in mid-January to which federal judges, federal defenders, U.S. attorneys, and probation officers will be invited.

For more on the Commission’s actions visit www.ussc.gov.