Permanent retroactivity applied to crack-cocaine sentence reductions

Thousands of federal inmates nationally and more than 200 from Indiana could get time shaved off their prison terms for crack-cocaine convictions, after the U.S. Sentencing Commission voted to make reductions retroactive starting later this year.

The U.S. Sentencing Commission voted unanimously June 30 that proposed amendments to the guidelines that are part of the Fair Sentencing Act of 2010 should become permanently retroactive, effective Nov. 1.

This is the latest in a multi-year push to revise the mandatory minimum-sentencing guidelines for those who’d been convicted for crack-cocaine offenses, a legal standard that’s been declared unreasonable and unconstitutional since first being implemented three decades ago.

Since the 1980s, the criminal justice system has gone by what’s known as the 100-to-1 ratio: someone convicted of possessing and intending to distribute five grams of crack cocaine in rock form would receive the same five-year minimum sentence as those doing the same with 500 grams or more of the powder-form cocaine.

But after landmark rulings from the Supreme Court of the United States in 2005 that restructured the nation’s sentencing structure, federal judges began looking at changes. Judge David F. Hamilton – as a Southern District of Indiana judge before his elevation to the 7th Circuit Court of Appeals – studied that issue as part of the Committee on Criminal Law of the U.S. Judicial Conference and ultimately wrote to the Sentencing Commission about allowing retroactive reductions to those sentences.

The commission first voted in late 2007 to make sentencing reductions retroactive beginning in March 2008, and since then more than 16,000 convicts – 65 percent of those who requested relief – have been granted reduced sentences throughout the country.

The Northern District of Indiana has granted 80 percent and reduced 218 sentences, while the Southern District has granted about 59 percent and reduced 64 sentences, according to sentencing data. Overall, data shows the Northern District has reduced sentences by 17.2 percent – or 22 months total – while the Southern District has lowered sentences by 15.5 percent – or 31 months total based on the cases it’s handled.

The commission has continued studying that issue through the years. The Fair Sentencing Act passed in 2010 that took effect Aug. 3, 2010, included lower sentences for crack-cocaine offenses going forward, but didn’t address retroactivity and that is what the proposed amendments to the guidelines focus on. A full day hearing June 1 brought in national experts to speak on the issue and why it’s needed, and the commission members spent the past month considering views from Congress, the U.S. Department of Justice, and the federal judiciary and legal community before making this decision.

If Congress doesn’t disapprove of the amendment and revise it, then the retroactive reductions would go into effect and mean federal judges would be responsible for determining if convicts should receive lower sentences. Based on fiscal year 2010 sentencing data, approximately 12,000 offenders may be eligible to receive a sentence reduction, and the average reduction for those eligible would be about 37 months – leading to an average sentence, even after reductions, of about 10 years. The Bureau of Prisons estimates that this retroactivity could result in more than $200 million in savings during the first five years after retroactivity takes effect.

For Indiana going forward, data shows that 142 inmates sentenced between 1992 and 2010 could be eligible for lower sentences in the Northern District and 80 might be eligible in the Southern District. Most would be eligible for release from prison either immediately on Nov. 1, 2011, three years out, or more than six years after the retroactivity application takes effect, figures show, depending on when they were originally sentenced.

Now on the 7th Circuit Court of Appeals, Judge Hamilton told Indiana Lawyer that he hasn’t followed this issue closely recently but that generally he expects new cases to materialize in the District and Circuit courts as a result. He declined to speak more specifically because those issues might come before him, but judicial decisions recently show this retroactivity topic has been controversial.

A Wisconsin case before the 7th Circuit earlier this year hit on the topic, questioning when the Fair Sentencing Act and crack-cocaine offenses should be applied to those sentenced after its passage in 2010 for offenses convicted prior to that time. That case was U.S. v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011), and a three-judge panel decided nothing could be done retroactively. The appellate court denied rehearing the case en banc, though Judges Hamilton and Ann C. Williams both dissented on that denial and said they would have agreed to hear it and apply the Fair Sentencing Act retroactively.

The 7th Circuit was the first nationally to address that question, and now with this new retroactivity guideline amendment, those types of cases could have a different outcome.