News Release ~ 06/30/2011

Criminal Defense Bar Applauds Retroactive Federal Crack Cocaine Sentencing Guideline

Washington, DC (June 30, 2011) – When the Fair Sentencing Act of 2010 was signed into law last year, something sad happened. Defendants who were arrested for possession or distribution of cocaine base, or crack, the day the law went into effect no longer faced the 100-to-1 sentencing disparity and draconian mandatory minimum sentences of the 1986 law for possession of as little as 5 grams of crack, which was treated as severely as 500 grams, or over a pound, of powder cocaine. But persons arrested only the day before the law went into effect still faced the original severe penalties.

For more than two decades, low-level crack dealers were sentenced more severely than major powder cocaine traffickers even though both crack and powder cocaine are the same chemical with the same effects. This unwarranted disparity is particularly disturbing because of its racial impact – 83 percent of inmates serving time in the federal prison for crack cocaine offenses are minorities, and their sentences are more than 50 percent longer than inmates serving time for cocaine powder. Today’s unanimous vote by the U.S. Sentencing Commission making the federal crack sentencing guidelines retroactive is a step toward ameliorating those injustices.

While the legislation itself failed to eliminate the sentencing disparity between crack and powder cocaine completely, it did reduce that disparity to roughly 18 to 1. Since enactment, distribution of a gram of crack roughly draws the same sentence as distribution of 18 grams of powder. The federal sentencing guidelines now give previously convicted defendants the benefit of Congress’s reductions.

“The difference between crack and powder cocaine is cultural, not chemical,” said Houston attorney and NACDL President Jim E. Lavine. “The Commission’s own research indicates that over 80 percent of the non-violent offenders who will benefit from the new guideline are African-American or Hispanic. We can’t give back all the time that offenders served under the previous guidelines, but reducing prison time for those persons still incarcerated is a significant recognition of the unfairness of the old law.”

“A civilized society doesn’t mete out punishment based on a defendant’s culture or skin color,” Lavine said.

The National Association of Criminal Defense Lawyers thanks the Commission and the broad coalition of civil rights, community and criminal defense organizations and individual activists that worked to right a long-time wrong.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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