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August 16, 2010 (The Sentencing Project)

Crack Cocaine Sentencing Changes Should Apply Retroactively

In a letter to the U.S. Sentencing Commission, The Sentencing Project urged that the Sentencing Guideline changes mandated under the Fair Sentencing Act -- reducing the sentencing disparity between crack and powder cocaine to 18 to 1-- apply to persons arrested and sentenced prior to the law’s enactment on August 3, 2010. Although the new law is silent on retroactive application of the new sentencing structure, the Commission does have the authority to apply its changes to the Sentencing Guidelines retroactively. The Commission cannot make changes to the statutorily set mandatory minimums retroactive.

The letter highlights the recent success with retroactivity of the “crack minus two” amendment proffered by the Commission in 2007. “Despite sensationalized warnings of administrative burden and increases in crime, these concerns have not been borne out. This success should encourage the Commission to continue on its path towards increased sentencing fairness by applying the Fair Sentencing Act to persons sentenced before its enactment.”

Issue Area(s): Sentencing Policy, Incarceration, Racial Disparity, Crack Reform