In 2007 the U.S. Sentencing Commission decided to bring sentencing minimums for crack in line with powder cocaine that applied retroactively. The sentencing minimums had been established in 1986 had a 100-to-one disparity between the two substances and led to massive race disparities, as 79% of sentenced crack offenders were black compared to 10% white.
In 2008, Barrett criticized the reversal attacking the retroactive application on grounds that it would be too logistically challenging.
1986: Congress Passed A 100-To-One Disparity In Crack To Powder Cocaine Sentencing. According to the ACLU, “A few weeks after Bias’ death, Congress passed the Anti-Drug Abuse Act of 1986, establishing for the first time mandatory minimum sentences triggered by specific quantities of cocaine. Congress also established much tougher sentences for crack cocaine offenses than for powder cocaine cases. For example, distribution of just 5 grams of crack carries a minimum 5-year federal prison sentence, while for powder cocaine, distribution of 500 grams – 100 times the amount of crack cocaine – carries the same sentence.” [ACLU, 10/25/06]
November 2007: The U.S. Sentencing Commission Decided To Reduce Federal Sentencing Guidelines For Crack Cocaine Offenses, Bringing Them Into Line With Powder Cocaine Sentences. According to The United States Sentencing Commission, “On November 1, 2007, after a six-month congressional review period, the Commission’s amendment to the Federal sentencing guidelines for crack cocaine offenses took effect. The amendment was intended as a step toward reducing some of the unwarranted disparity currently existing between Federal crack cocaine and powder cocaine sentences.” [United States Sentencing Commission, 12/11/07]
December 2007: The U.S. Sentencing Commission Unanimously Voted To Give The Revision To Crack Sentencing Guidelines Retroactive Status. According to The United States Sentencing Commission, “The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008. Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.”[United States Sentencing Commission, 12/11/07]
March 2008: Following The Announcement Of The Retroactive Nature Of The Correction To The Crack/Cocaine Disparity In U.S. Sentencing Guidelines, Barrett Wrote A Blog Post Attacking The Retroactive Nature Of The Decision For Its Logistical Challenges. According to a post by Amy Barrett on PrawfsBlawg, “Practically, are the courts, prosecutors, probation departments, and marshals equipped to deal with a 25% increase in the number of sentencings performed? Is the defendant entitled to an in-person hearing, obligating the United States marshals to transport the defendant from prison to the court where the sentence was originally imposed and obligating the courts to appoint counsel if the defendant cannot afford one? Legally, what issues can be relitigated? Although the amended Guideline seeks to limit reconsideration only to the impact of the change in the crack-cocaine offense level, courts are not bound to follow that guidance. In light of the recent Supreme Court decisions in Gall and Kimbrough, can a district judge properly refuse to consider the other sentencing factors identified by the Court at the resentencing? If a prosecutor did not seek an otherwise applicable sentencing enhancement in reliance on the hefty Guidelines score resulting from the fact that the offense involved crack cocaine, is the prosecutor entitled to now seek application of that enhancement? Would a prosecutor still be bound by a provision in a plea agreement in which he agreed to seek a sentence at the low end of the applicable sentencing range, where the Guidelines setting that range have changed? If a defendant waived his appellate rights in a plea agreement, does that waiver still apply after the resentencing? Regardless of the impact of such a waiver, what appellate rights exist? This retroactive change also underscores what seems to me an irony in the current federal sentencing regime. The courts must consider requests for new sentences based on amendments to the Guidelines, but because the Guidelines are not mandatory, the courts need not modify the sentences unless they so choose. Does someone who knows more about this than I do have ideas about how the retroactive aspect of these amendments will be implemented? Was retroactivity a wise call?” [PrawfsBlawg – Amy Barrett, 03/03/08]
Barrett: "There Are A Host Of Issues That Arise With The Retroactivity Of These Amendments." According to a post by Amy Barrett on PrawfsBlawg, These amendments are apparently the first that the Sentencing Commission has ever made retroactive. (An explanation is here.) The Department of Justice estimates that over 20,000 inmates will file requests for a reduced sentence. There are a host of issues that arise with the retroactivity of these amendments. (And as you might surmise, the fact that my husband is a federal prosecutor very much concerned about the on-the-ground implications of retroactivity affects the issues that I see.)?” [PrawfsBlawg – Amy Barrett, 03/03/08]
Barrett Was Concerned That The Change Might Create More Work For Her Husband. According to a post by Amy Barrett on PrawfsBlawg, These amendments are apparently the first that the Sentencing Commission has ever made retroactive. (An explanation is here.) The Department of Justice estimates that over 20,000 inmates will file requests for a reduced sentence. There are a host of issues that arise with the retroactivity of these amendments. (And as you might surmise, the fact that my husband is a federal prosecutor very much concerned about the on-the-ground implications of retroactivity affects the issues that I see.)?” [PrawfsBlawg – Amy Barrett, 03/03/08]