June 2011

Judiciary Supports Retroactivity of Crack Cocaine Amendments

“I recommend that the Sentencing Commission . . . give retroactive effect to its recently promulgated amendments lowering sentences for crack offenses,” Judge Reggie Walton (D. D.C.) said at a Commission hearing held this month to consider making recently promulgated crack cocaine amendments retroactive. Walton spoke on behalf of the Judicial Conference Criminal Law Committee.

Judge Reggie Walton (D. D.C.) testified in June before the U.S. Sentencing Commission.

The amendments would reduce penalties for crack cocaine trafficking and would modify the guidelines provisions related to simple possession of crack cocaine. The sentences of more than 12,000 federal inmates would be affected by a decision to make the amendments retroactive.

Despite significant anticipated budget reductions for the Judiciary and the workload associated with sentence reductions for more than 12,000 inmates, Walton told the Commission that the Criminal Law Committee “continues to believe that an extremely serious administrative problem would have to exist to justify not applying the amendment retroactively. At this time, the Committee does not believe that an extremely serious problem exists.”

Walton also said there continues to be strong support throughout the Judiciary to remedy the injustices related to crack sentencing.

“If the guideline is faulty and has been fixed for future cases, then we also need to undo past errors as well,” he said.

Among the witnesses testifying at the hearing were Attorney General Eric H. Holder, Jr. and Thomas R. Kane, acting director of the Federal Bureau of Prisons, along with panels of practitioners, law enforcement experts, and academics, and a community interest panel.

Holder also called for the retroactive application of the guideline amendment—with a proviso that applies to certain dangerous offenders: “those who have possessed or used weapons in committing their crimes and those who have significant criminal histories should be categorically prohibited from receiving the benefits of retroactivity,” said Holder.

Walton noted that the Criminal Law Committee’s recommendation in favor of retroactivity is limited to two parts of the amendment: Part A, affecting the drug quantity table for offenses involving crack cocaine; and Part C, which deletes a cross reference in the guidelines manual that effectively lowers guideline ranges for certain defendants involving simple possession of crack cocaine. Both of these amendments, “are consistent with the Judicial Conference’s position opposing sentencing differences between crack and powder cocaine and agreeing to support the reduction of those differences,” said Walton.

In October 2010, the USSC promulgated a temporary emergency amendment that implemented the emergency directive in section 8 of the Fair Sentencing Act of 2010. In April 2011, the USSC re-promulgated the temporary amendment as a permanent amendment, which will become effective, absent congressional action, on November 1, 2011. At the same time, the Commission asked for comment on whether it should give the amendment retroactive effect.

After promulgating crack cocaine amendments in 2010, the U.S. Sentencing Commission asked for comment in public hearings on whether the amendments should be retroactive. A hearing was held June 1, 2011, in Washington, DC.