News Release ~ 06/01/2011

Criminal Defense Bar Urges Sentencing Commission to Make Reduced Crack Cocaine Guideline Retroactive

Washington, DC (June 1, 2011) – Last summer, the Fair Sentencing Act of 2010 was signed into law. While the legislation failed to eliminate the sentencing disparity between crack and powder cocaine completely, it did reduce that disparity to roughly 18:1. Since enactment, distribution of a gram of crack roughly draws the same sentence as distribution of 18 grams of powder. Currently, though, the sentencing guidelines amendments implementing the Fair Sentencing Act of 2010 are not retroactive. U.S. Sentencing Commission staff estimates that 12,040 offenders at most would be eligible for a sentence reduction if the amendment is made retroactive. Justice demands that these offenders too benefit from the change in the law. Today, Jim E. Lavine, president of the National Association of Criminal Defense Lawyers (NACDL), appeared before the U.S. Sentencing Commission on behalf of NACDL to make exactly that point.

Lavine explained the stark racial injustice that would flow from any decision by the Sentencing Commission not to follow the same, equitable course it has in similar contexts in the past concerning other illegal substances:

“All of the preceding amendments that were made retroactive—dealing with LSD, marijuana, and oxycodone—generally benefitted white defendants. The statistics demonstrate, however, that retroactive application of the Fair Sentencing Act amendment will generally benefit black defendants. As previously noted, Commission staff estimates that 85.1% of the offenders eligible for retroactive application of the FSA Guideline amendment are African-American. The crack cocaine sentencing scheme is perhaps the most publicized and controversial aspect of the federal sentencing system. The racially disparate impact of the 100:1 ratio is well-known and the public perception that our drug laws are racially discriminatory is well-established. A decision to deny retroactivity would likely undermine public confidence in the Sentencing Commission and the federal criminal justice system as a whole, and cement an understanding that justice is distributed on the basis of skin color. The Commission cannot ignore these negative consequences. Making this amendment retroactive is the only fair and principled course.”

A copy of NACDL President Jim E. Lavine’s testimony on behalf of NACDL is available at http://www.nacdl.org/public.nsf/legislation/Rules&Reg_attachments/$FILE/Lavine06012011.pdf 

Contact: Jack King, Public Affairs, (202) 872-8600 x228, jack@nacdl.org

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 9,000 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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