ACLU Urges USSC to Restore Fairness to Federal Drug Sentencing

November 13, 2007 12:00 am

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Washington, DC – On November 1, as a result of corrective action by the United States Sentencing Commission (USSC), the federal sentencing guidelines for crack cocaine were brought back in line with the mandatory minimum statute. The ACLU now urges the USSC to take the additional step of making such changes retroactive, a move that would go a long way toward increasing parity and justice in cocaine sentencing.

“Making the recent change retroactive would offer relief to thousands of defendants who, because of the inconsistency caused by the sentencing guidelines, received sentences higher than the mandatory minimum required by law,” said Jesselyn McCurdy, legislative counsel at the ACLU Washington Legislative Office. “For the sake of consistency and basic fairness under the law, this change must be retroactive. The USSC’s decision to correct the guidelines now was in part an acknowledgment of a 20-year-old error. It makes little sense to reduce the sentences of future offenders, while not correcting the sentence of those who are currently incarcerated under the earlier, flawed version of the sentencing guidelines.”

The ACLU also responded to concerns that making such changes would mean that the courts and communities see an influx of ex-offenders. According to the Commission’s Office of Research and Data (ORD) approximately 19,500 offenders would be eligible to seek a reduced sentence if the sentencing guideline changes are made retroactive. These offenders would receive staggered release dates over a period spanning more than three decades. Any impact on the Bureau of Prisons would be minimal because, according to ORD data, in the first year after the amendment goes into effect only an additional 2,520 persons would be released from custody if the amendment were made retroactive. By the second year, only an additional 123 people would be eligible for release. After that, there would be no significant difference.

It is important to note that the USSC’s changes to federal sentencing guidelines, if they are made retroactive or not, do nothing to impact the statutory 100-to-1 quantity disparity between crack and powder cocaine. Mandatory minimums will remain unchanged unless Congress acts. Correcting these sentencing policies would dramatically affect African-American communities by removing the harsh penalties that disproportionately affect them and severely limit their opportunities. As an interim measure, however, the USSC’s federal sentencing guideline changes for crack cocaine offenses must be made retroactive as a step towards easing over two decades of injustice in cocaine sentencing.

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