President Obama’s Commutation of the Sentences of Eight People Convicted of Crack Cocaine Distribution Under the 100:1 Ratio Law Creates a Question About What to Do with the 8800 Other People Serving Similarly Unjust Sentences
On December 19, 2013, president Obama commuted the sentences of eight people who had been convicted of possession with intent to distribute crack cocaine under the infamous 100:1 ratio, a law that imposed the same sentence on someone who possessed 5 grams of crack as that imposed on another person who possessed 500 grams of powder cocaine, even though crack is exactly the same chemically as powder. The 100:1 ratio was created by the Anti-Drug Abuse Acts of 1986 and 1988. Following the hysteria surrounding the death of University of Maryland basketball star Len Bias, which was mistakenly attributed to crack cocaine use. I was one of the first commentators to document and criticize the disparate impact that the 100:1 ratio had on African-American crack users in my 1996 article “Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy” published in Volume 38, Number 4 of the Arizona Law Review. The harsh mandatory minimum drug sentencing laws were responsible for a 500 percent increase in the federal prison population over the past 30 years.
The Fair Sentencing Act of 2010 reduced the 100:1 ratio to 18:1 and eliminated the 5-year mandatory minimum sentence for possession of crack cocaine. However, the Fair Sentencing Act is not retroactive, meaning that the approximately 8,800 federal inmates who were sentenced under the 100:1 ratio law cannot be resentenced under the new, fairer crack sentencing law. There is currently a bill pending in the United States Senate – the Smarter Sentencing Act of 2013 – that would allow the approximately 8800 people currently serving sentences under the 100:1 ratio law to make a motion to have their unfair sentences reduced. Although there seems to be bi-partisan support for the effort to remedy this unjust sentencing law, no action has been taken on the Smarter Sentencing Act in the House of Representatives. Accordingly, short of presidential commutations, inmates serving unjust sentences for crack cocaine offenses have no remedy.
The Smarter Sentencing Act is part of the larger trend in the federal criminal justice system to remove the power of federal prosecutors to dictate sentences by charging decisions related to the amount of the drug charged and return discretion to judges. In addition to making the Fair Sentencing Act retroactive, the Smarter Sentencing Act also increases the power of judges to make use of the federal “safety valve” mechanism for certain non-violent first-time drug offenders. The current movement in Congress towards lowering penalties for crack cocaine offenses cannot be attributed solely to a concern for the injustice of the pre-Fair Sentencing Act system. Lawmakers also recognize the huge drain on the federal law enforcement budget of incarcerating so many people. It costs approximately $30,000 to house one federal inmate for a year and the federal government spends a staggering $6.4 billion each year to maintain its prisons. This amounts to 25% of the entire Justice Department budget.
I am continuing to closely monitor the progress of the Smarter Sentencing Act and am ready to take action to seek just sentences for federal inmates serving unjust sentences under the 100:1 ratio as soon as the law changes.
Posted on: December 23rd, 2013 by William Spade