FAMM was proud to see Congress pass the Fair Sentencing Act of 2010 last year. FAMM worked for over two decades to eliminate the sentencing disparity between crack and powder cocaine. While the "new crack law," as so many of our members call it, didn't get rid of the disparity between crack and powder cocaine completely, it did reduce the amount of crack needed to trigger the 5 and 10-year mandatory minimums.
But the law wasn't retroactive and doesn't benefit federal crack offenders who committed their crimes before the day the reform became law: August 3, 2010. This lack of retroactivity persists, despite the fact that Congress found that the old law was too harsh, unjust, and created racial disparities.
And, according to this New York Times article, the new law's lack of coverage for those already in prison has outraged many federal judges:
In [a] recent decision, Judge Michael A. Ponsor of Federal District Court in Springfield, Mass., said that could not be right. It is one thing, he wrote, to have to impose an unjust sentence. But it is asking too much of judges, he went on, to require them to continue to sentence defendants under a racially skewed system “when the injustice has been identified and formally remedied by Congress itself.”
About 30 other federal trial judges have said more or less the same thing. ...
The only appeals court to directly address the question so far, in Chicago, said only Congress could apply the new standards to old cases.
“We have sympathy,” Judge Terence T. Evans wrote for a unanimous three-judge panel, “for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair.”An editorial in today's Times argues that prosecutors -- who have almost limitless discretion -- could do the right thing by charging people differently or letting states pick up the cases of crack offenders who won't get the benefit of the new law just because of the date they committed their crime.
While the Justice Department should use its discretion more justly in charging such cases, we must not let Congress or the U.S. Sentencing Commission off the hook either. When a corporation discovers a flawed product, it stops producing it and orders a recall. Congress reduced crack penalties because they were excessive, but only going forward. Now the U.S. Sentencing Commission and Congress must do the equivalent of a “recall” and make the lower sentences retroactive so that defendants and prisoners left behind can benefit.