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U.S. Sentencing Commission makes crack cocaine sentencing reductions retroactive

In a major win for criminal defendants nationwide who have been sentenced for federal drug offenses involving crack cocaine, the U.S. Sentencing Commission has unanimously voted to make adjustments to the federal sentencing guidelines apply retroactively to existing inmates. The Fair Sentencing Act of 2010, which amends the federal sentencing guidelines, was passed to correct the injustice of sentencing people convicted of crack-related offenses to as much as 100 times as much time in prison as those convicted of offenses involving the same effective dose of powder cocaine.

Nearly 1 in 17 federal prisoners are incarcerated for crack-cocaine offenses such as possession, distribution and trafficking.

While the so-called "crack amendment" isn't perfect, it does reduce the crack cocaine/powder cocaine sentencing disparity to between 25:1 and 80:1, depending on the offense. While the reduction in mandatory minimum sentences for new crack convictions went into effect last year, it has been an open question whether inmates incarcerated under the old rules would be allowed to appeal for resentencing.

Yesterday, the Commission unanimously determined that justice requires that people currently serving time under the old guidelines be allowed to seek reductions in their sentences. The sentencing commission chair, Federal judge Patti Saris, chair of the Sentencing Commission, said that the decision "ensures that the longstanding injustice recognized by Congress is remedied."

"An injustice," said Harvard Law School professor Charles Ogletree, "has finally been corrected."

If you want a sentence reduction for a crack cocaine offense, you will need to petition for a resentencing hearing

The Commission estimates that the retroactive application of the Fair Sentencing Act to existing inmates will give as many as 12,000 people an opportunity to seek early release. The average amount of time inmates will get taken off of their sentences is about 37 months, according to the group.

To seek a reduction in your sentence, first, be aware that the new rule goes into effect on November 1. That may seem like a long wait, but it's a good idea to contact a criminal appeals attorney and get started on your resentencing appeal as soon as possible.

Second, the reduction in sentence isn't automatic. Each prisoner who applies for resentencing will receive a hearing, but the judges will have the final say on whether anyone receives a sentencing reduction. Judges will have to determine whether each individual inmate poses a threat to public safety before reducing their sentences under the crack amendment.

The retroactive application of the Fair Sentencing Act is an historic step toward truly fair sentencing, and it will positively impact the nearly 1 in 17 federal prisoners who have been incarcerated for crack-cocaine offenses.

Source: The National Law Journal, "Sentencing Commission approves retroactive crack guidelines," Mike Scarcella, June 30, 2011

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