The U.S. Sentencing Commission decided this afternoon to make its reduction in the sentencing guidelines for crack cocaine retroactive.
That typically would mean a reduction of about five years for a 20-year sentence and about two years for a 10-year term, according to Rob Wagner, an assistant federal public defender in Richmond.
It also would have a greater impact on prisoners sentenced in the Eastern District of Virginia than anywhere else, he said. “We’ve consistently had the most crack cocaine cases of any district in the country.”
That is largely because many cases that typically would have been prosecuted in state court were handled in federal court under a program called Project Exile because of the harsher punishment available under federal law.
Under the old sentencing guidelines, a drug trafficker dealing crack cocaine was subject to the same sentence as one dealing in 100 times more powder cocaine. The commission lowered that disparity under regulations that took effect Nov. 1 by reducing the base offense level associated with each quantity of crack by two levels.
Congress could have intervened to maintain the disparity but did not do so.
Each of 19,500 defendants convicted of a crack cocaine offense would have to appear before a federal judge for a possible sentence reduction. The burden of so many hearings was one reason the U.S. Justice Department opposed retroactivity.
Opponents of the disparity between crack and powder cocaine long have pointed to its harsher effect on black defendants. Eighty-six percent of crack defendants are black, compared with just over a quarter of defendants convicted of powder cocaine.
The commission’s decision came a day after the U.S. Supreme Court ruled that a federal judge properly considered the disparity in sentencing a crack defendant to a term below the guidelines.