Before the changes, a person with just five grams of crack received a mandatory sentence of five years in prison. That same person would have to possess 500 grams of powder cocaine to earn the same punishment. This disparity, known as the 100-to-1 ratio, was enacted in the late 1980s and was based on myths about crack cocaine being more dangerous than powder. Scientific evidence, including a major study published in the Journal of the American Medical Association, has proven that crack and powder cocaine have identical physiological and psychoactive effects on the human body.
Advocates pushed to totally eliminate the disparity, but ultimately a compromise was struck between Democrats and Republicans to reduce the 100-to-1 disparity to 18-to-1.
The 100-to-1 ratio has caused myriad problems, including perpetuating racial disparities, wasting taxpayer money, and targeting low-level offenders instead of dangerous criminals. African Americans comprise 82 percent of those convicted for federal crack cocaine offenses but only 30 percent of crack users, and 62 percent of people convicted for crack offenses were low-level sellers or lookouts.
We are sad to say that the bill, the Fair Sentencing Act of 2010 (S.1789), is not retroactive and does not impact people who are already incarcerated. This was another compromise that Democrats had to make to get Republicans on board, even though Democrats have majorities in both the Senate and the House. There were rumors that the U.S. Sentencing Commission would eventually make the new law retroactive, but this is not the case. The Commission can only make changes to the Sentencing Guidelines, not the mandatory minimum sentencing (MMS) laws. Only Congress can make changes to MMS laws.
However, S.1789 does give the U.S. Sentencing Commission “emergency authority” to amend the crack sentencing guidelines within 90 days after the law goes into effect. This amendment will allow the new 18-to-1 crack/powder ratio to appear in the emergency advisory guidelines. Any temporary emergency amendment would only apply to prisoners sentenced on or after the amendment goes into effect and would last until a permanent amendment is made.
The U.S. Sentencing Commission estimates that about 3,000 prisoners charged with federal crack offenses will receive shorter sentences due to S.1789. The changes in the law would shorten federal crack sentences by an average of 27 months. Overall, the compromise bill is expected to save an estimated $42 million in criminal justice spending over the first five years.
Prisoners who will not benefit from the new changes are those who are already sentenced and those convicted in state courts for state crimes. Also, these changes do not apply to federal mandatory minimums for any other type of drug – only crack cocaine.
As a former prisoner who received a 15-to-life sentence under New York’s Rockefeller Drug Laws, I know first-hand the reality of being sentenced under mandatory minimum sentencing laws. I eventually served 12 years and was set free after being granted clemency by Governor Pataki in 1997. When I came out I became an activist helping those left behind to regain their freedom. I started an organization called “The Mothers of the New York Disappeared,” which played a significant role in the recent reform of the Rockefeller Drug Laws in 2009. I now work for the Drug Policy Alliance, an organization that is dedicated to promoting treatment instead of incarceration, and that leads the way in reforming draconian drug laws throughout the United States.
My advice for prisoners serving long sentences under MMS laws is to not give up hope. I did not, and eventually regained my freedom. We will continue to fight to change the existing crack/cocaine laws and to help prisoners who are serving sentences dished out under unfair and ineffective war-on-drug statutes. The Fair Sentencing Act is a huge step forward in reforming our country’s overly harsh and wasteful drug laws, but much more needs to be done.
Anthony Papa is the author of “15 to Life” and the Manager of Media Relations for the Drug Policy Alliance (DPA) in New York City. DPA’s Deputy Director of National Affairs, Jasmine Tyler, also contributed to this article.
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