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Sentencing commission again reduces crack sentences

The U.S. Sentencing Commission has given retroactive effect to its proposed permanent amendment to the federal sentencing guidelines for crimes involving crack cocaine. The action could make 12,000 federal offenders eligible to seek a reduction in their prison sentence.

A dispropotionate number of those offenders were convicted and sentenced in the Richmond Division of the Eastern District of Virginia, largely as a result of Project Exile. The program prosecuted firearm cases that typically would have been tried in state court as federal offenses because of the harsher penalties available under federal law. Many of the defendants picked up on firearm charges also were involved in crack trafficking.

Michael Nachmanoff, the public defender for the Eastern District said about 885 defendants are from the Eastern District, twice as many as in any other district.

The amendment will take effect Nov. 1 unless Congress acts to disapprove it. The average sentence reduction for those offenders affected will be about 37 months. Even after that reduction, the average sentence for them will be about 10 years.

The proposed reductions are a result of the longstanding criticism of guidelines that originally subjected a crack cocaine trafficker to the same penalty as one dealing 100 times more powder cocaine.

The disparity in the treatment of powder cocaine and crack trafficking  was justified because of the association of crack with violence and guns. However, the commission concluded in 1995 that the disparity was no longer defensible.

Critics contended that the disproportionate number of blacks sent to lengthy prison terms on crack charges undermined the integrity of the system.

The reductions follow the adoption last year of the Fair Sentencing Act of 2010, which lowered the penalties for crack cocaine trafficking. The commission’s action makes retroactive the effect of those reductions on sentences imposed earlier. Reductions for individual defendants are still subject to court approval.

Many of the defendants who are eligible for sentence reductions already have had their sentences reduced once.

The commission authorized the first round of reductions in December 2007, when about 1,500 of the 20,000 defendants eligible for the reductions were in the Richmond Division.

Reviewing all those cases took about 18 months, but Nachmanoff said he expects the process to be more efficient this time because of that experience.

The Department of Justice cited public safety concerns in imposing the sentencing reductions in 2007 but generally supported the commission’s proposed reductions this time.

Studies showed that the recidivism rate for those released under the first program was lower than the recidivism rate in general, Nachmanoff said.

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