United States Enjoys the Dubious

¶ … United States enjoys the dubious distinction of incarcerating more of its citizens than practically any nation on earth, and large numbers of these citizens are being incarcerated for drug-related crimes including crack cocaine. Although crack cocaine is chemically similar to other preparations of the drug, the crack preparation is favored by African-American users and the disparities of the sentencing guidelines for the drug have fallen directly on this segment of the population. Until recently, Congress resisted calls for reform of these sentencing guidelines, but the recent enactment of the Fair Sentencing Act of 2010 indicates that substantive reform is being actively sought. To determine the potential of the retroactive application of the provisions of the Fair Sentencing Act of 2010 on currently incarcerated crack cocaine offenders, this paper reviews the relevant literature to determine the goals, provide an assessment of the intended and unintended consequences of the existing criminal justice policy, an analysis of the key stakeholders who are involved, the desired outcome objectives as well as a summary of the research and important findings in the conclusion.

Reforming Sentencing Guidelines for Crack Cocaine

Introduction

Among the most blatantly unfair laws that have remained on the books for the past several decades despite efforts to fix them have been the sentencing guidelines for crack cocaine. In their effort to "get tough on crime," lawmakers have clearly singled out a segment of the American population to "get tough on." Although crack is essentially chemically identical to other preparations of the drug, possession of the crack form of cocaine carries enormously stiffer penalties than these other preparations and these penalties have affected African-Americans at disproportionately greater rates than others, primarily because they constitute the large population of users. As the nation's prisons continue to fill to overflowing, an increasing number of observers have been calling for reform of the sentencing guidelines for crack cocaine and the introduction of treatment and rehabilitation programs to replace them. To determine what impact these calls for reform will have following their implementation, this paper provides a review of the relevant literature concerning sentencing guidelines for crack cocaine, including goals to address the issue, an assessment of the intended and unintended consequences of the existing criminal justice policy, followed by an analysis of the key stakeholders who are involved and the desired outcome objectives. A summary of the research and important findings are presented in the conclusion.

Review and Analysis

Goals to address the issue

An overarching goal of the revision of previous sentencing guidelines for crack cocaine related to the fundamental disparity of their effect on minorities. In response to these disparities, in August 2010, President Barack Obama approved legislation, "The Fair Sentencing Act of 2010" (hereinafter alternatively "the Act") that reduces the sentences for crack cocaine-related offenses based on the disparities involved in the harsher penalties received by crack cocaine offenders compared to other types of cocaine offenders (McCabe, 2011). According to a recent editorial in the Corpus Christi Caller-Times (2011), "The Fair Sentencing Act of 2010 brought a measure of sanity to the grossly unfair crack laws. Where once an offender faced a mandatory five-year sentence for carrying five grams of crack - the weight of two pennies - the new sentencing act imposes the same penalty only if the offender is convicted of peddling 28 grams" (A step backward on sentencing, p. A8).

More importantly for the purposes of reducing the disparities of the former sentencing guidelines is the fact that the Act also reduces the harshness of the sentences meted out for crack cocaine compared to other preparations of the drug. In this regard, the editorial adds that, "Just as important, the new law eliminates mandatory minimum sentences for simple possession, and it narrows the gap between the harsh crack sentences imposed most often on young, African-American men and the far more lenient penalties for powder cocaine infractions more often associated with white and Hispanic offenders" (A step backward on sentencing, 2011, p. A8). Although the Fair Sentencing Act helps address the sentencing disparities for crack cocaine for future offenders, the question has been raised as to whether to retroactively apply its provisions to currently incarcerated offenders, a move that would have enormous implications for the criminal justice system as well as the American taxpayer. According to McCabe (2011), "Attorney General Eric Holder Jr. urged the U.S. Sentencing Commission to make the law applicable to federal prisoners sentenced under the old guidelines. The change could mean the early release of more than 12,000 prisoners nationwide, shaving three years off the average sentence" (p. 37). Following the president's approval of the Act, the attorney general encouraged the U.S. Sentencing Commission to apply the provisions of the sentencing guidelines ex post facto to federal prisoners who had been sentenced under the old guidelines (McCabe, 2011). An assessment of the intended and potentially unintended consequences of this criminal justice policy are discussed further below.

Assessment of the intended and unintended consequences of the criminal justice policy

By most accounts, the specific intended consequences of the previous sentencing guidelines for crack cocaine were directly targeted at those who were the most frequent users -- African-Americans. For instance, according to Welch and Harris (2008), "In an analysis of federal sentencing guidelines, researchers found that African-Americans received longer sentences than whites, not because of differential treatment by judges but because they constituted the large majority of those convicted of trafficking in crack cocaine -- a crime Congress had singled out for especially harsh mandatory penalties" (p. 120). Despite repeated efforts to address these glaring disparities in sentencing (Welch & Harris, 2008), Congress had refused to reconsider these guidelines until recently when President Obama approved revisions that addressed these disparities. Because previous crack cocaine penalties disproportionately affected African-Americans, an intended consequence of the revised criminal justice policy was to address this disparity. In this regard, a recent editorial in the Wall Street Journal reported that, "Under the old law, a person convicted of selling five grams of crack received the same mandatory minimum five-year sentences as someone selling 500 grams of powder cocaine. The new law reduces that 100-to-1 disparity to about 18-to-1, and the Administration called for the new sentencing rules to be implemented retroactively" (Get out of jail early, 2011, p. A12).

While the intended consequences of the previous and revised sentencing guidelines are clear, the potential unintended consequences of the retroactive application of these provisions to currently incarcerated crack cocaine offenders is less clear. It is reasonable to suggest that the return of thousands of crack cocaine-offenders into America's communities will have some measurable effect on the overall crime rate, but it is equally reasonable to suggest that the resources saved on the continued incarceration of these offenders can be applied in meaningful ways in other areas to help address the problems that are associated with substance abuse in the first place, thereby reducing the need for incarceration over the long-term. Whether this desirable outcome can be achieved remains to be seen, but it is possible to discern the likely implications for the various stakeholders and these issues are discussed further below.

Various stakeholders and outcome objectives