U.S. Sentencing Commission Creates Stir with Proposed Crack Retroacticve Amendment: Part I

The United States Sentencing Commission is an independent agency in the judicial branch of government (1). The commission has three primary responsibilities which comprise; determining the form and severity of punishment, establishing sentencing policies and practices to federal courts, and advising Congress on efficient crime policy. The complexity of collecting, analyzing and researching data, as it relates to the mission statement of the commission,
is extremely complex and somewhat politically charged. Regardless of the autonomy of independence within the judicial branch.

According to the Sentencing Reform Act created under the auspices of the Comprehensive Crime Control Act of 1984, one the principal motivations of the commission is to: “Provide certainty and fairness in meeting the purposes of sentencing by avoiding unwarranted disparity among offenders with similar characteristics convicted of similar criminal conduct, while permitting sufficient judicial flexibility to take into account relevant aggravating and mitigating factors (1).” This particular principle appears to have a created a “conflict of interest” with the parent organization, United States Department of Justice.

The mission statement of the Unites States Department of Justice is “To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans (2).”

During the mid 1970’s Urban American experienced an increased prevalence of drug possession and trafficking. “Urban American” within the confines of this article will be defined as inner cities as the central area of a major city. Particularly, areas of an inner city where there is a large population that may be less educated and impoverished. The etiology of this esoteric increase remains a hot topic of discussion. As a result of the increased activity, the State of New York, under former Governor Nelson Rockefeller, passed a series of anti-drug laws. According to to several sources (3, 4) Rockefeller’s anti-drug laws became the toughest in the nation. Which resulted in 15 year to life prison sentences for anyone
convicted of selling two ounces (2) or possessing four ounces (4) of controlled substances. Incidentally, the definition of “controlled substances” remained ubiquitous and controversial, as the New York State legislature in 1979 and 1988 amended the laws due to heavy criticism from the Association of the Bar of the City of New York and other community organizations. Consequently, Governor Rockefeller’s anti-drug laws became a template for other states.

As a result of Governor Rockefeller’s anti=drug laws, New York prison population tripled from approximately 20,000 to 62,000 between 1990 and 1992 (3). By the end of 2002 the prison population surged to over 74,000, due to the laws. Consequently, according to The Sentencing Project (5), 84.5% of defendants were African American compared with 10.3% White and 5.2% Hispanic. Statistical data was based upon U.S. Department of Justice estimates for 1994. Several dialouges have raised concerns about racial disparity. Specifically, African American defendants convicted of simple possession of cocaine powder compared White or Hispanic defendants use of the same substance. According to sentencing policy, based on cases Edwards v. United States, No. 95-3165. & State v. Russell 477NW 2d886, racial disparity continues to be pervasive in Urban America.

On May 31, 2007, the United States Sentencing Commission published sentencing guidelines to Congress concerning: “Notice of Extension of the Deadline for Public Comment Regarding Retroactivity. The purpose of this publication to the Federal Registry, were comments pertaining to “crack” and offenses pertaining to the cocaine base or Ammendment 12, which specifically pertains to criminal history rules. The proposal to amend sentences of previously
sentenced defendants under this category addresses the scope of this announcement.

On November 1, 2007 the Office of the Assistant Attorney General responded to the proposed retroactive application with trepidation. The retroactive application, if approved, would affect 20,000 or more cases. Demographic breakdown of the 20,000 cases is not available. However, one can presume that a significant percentage will be African American, based on existing sentencing drug policies.

Crack sentences imposed in Fiscal Years 2003-2006, would be eligible for review under the new amendment by Sentencing Commission. The “conflict of interest” between the USDOJ and USSC involves how applicable standards would be applied, in light of the Supreme Court’s ruling of United States v. Booker (7). According to the Office of the Assistant Attorney General with the Department of Justice, the issue revolves around how sentencing courts calculate the amended guidelines range. Furthermore, questions persists if the defendant should be present during this process. As a result, the Office of the Assistant Attorney General claims that undue hardship awaits sentencing courts, probation offices and its’ affiliates, if 20,000 defendants were released. How legitimate is this claim and does it matter if previous sentencing guidelines were racially motivated? Part 2 of this series will address these questions.

1. United States Sentencing Commission.[Online]. An Overview of the United States Sentencing Commission. Retrieved from http://www.ussc.gov/general/USSCoverview_2005.pdf on November 12, 2007.

2. United States Department of Justice. [Online]. Mission Statement. Retrieved from http://www.usdoj.gov/02organizations/ on November 10, 2007.

3. Partnership for Responsible Drug Information. [Online]. Rockefeller Drug Laws Information Sheet. Retrieved from http://www.prdi.org/rocklawfact.html on November 1, 2007.

4. Human Rights Watch. (1997). Cruel and unusual: Disproportionate sentences for New York drug offenders. New York.

5. Edwards v. United States, No. 95-3165 (D.C. Cir. 1996).

6. State v. Russell. 477 N.W. 2D886 (Minn. 1991).

7. U.S. Department of Justice. (2007). Letter to The Honorable Ricardo H. Hinokosa. United States Sentencing Commission. Attention Public Affairs-Radioactivity Public Comment. Office of Assistant Attorney General. November 1, 2007.

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