Wednesday, September 22, 2010

Make New Crack Law Retroactive Now

Before Congress adjourns at the end of the year, it should modify the Fair Sentencing Act - the law signed in August that reduces the disparity between crack and powder cocaine sentences from 100:1 to 18:1 - to make the law retroactive. The disparity was based on bad science; it was a mistake. Congress has a responsibility to undo the damage caused by its mistake. Fixing it for the future is nice, but it doesn't address the problem. When a car or toy manufacturer finds a mistake, they are expected to conduct a recall of their defective products. The federal government doesn't say, "Hey, guys, don't worry about those who might be harmed by your broken and dangerous products. Just try to make better ones in the future." Why should Congress hold itself to a lower standard for its mistakes?

We know people will argue that Congress changes laws all the time and it can't always make them retroactive, to which we respond, "We agree." We are not arguing that new laws that do things such as reduce taxes or provide greater government benefits should be made retroactive. These types of laws are different: they adjust policies over time to reflect the economic and social conditions of the time. Further, some new laws just do not lend themselves to backward enforcement. The new health care law, for example, requires insurers to cover children with pre-existing conditions. What good would it do to make that law retroactive?

Finally, a criminal sentencing law, such as the Fair Sentencing Act, involves one of the most serious issues for a free democratic republic such as ours - and that is the question of when the state should deprive an individual of his or her liberty. This is an argument that has existed since the beginning of civilization and will continue perhaps forever. It is a good and necessary debate and one in which reasonable people can disagree about the particulars. But it seems to us beyond rational debate that when a government bases a punishment scheme on science and data that is proven erroneous - and the government admits as much - that government should apply its remedy to all who endured its original mistake.