In 2010, the U.S. Congress passed historic, bipartisan legislation repealing a mandatory minimum sentence for the first time since the Nixon Administration and reforming the infamous 100-to-one ratio between powder cocaine and crack cocaine. FAMM supported that reform, the Fair Sentencing Act (FSA). Prior to the enactment of the FSA, it took 100 times as much powder cocaine as crack cocaine to receive the same five-, 10-, or 20-year mandatory minimum prison term. The FSA changed this so-called “100-to-one” disparity to a disparity of 18-to-one. The law also abolished a five-year mandatory minimum sentence for simple possession of crack cocaine. The law produces fairer sentences for approximately 2,000 federal crack offenders each year.
In response to the reform, the U.S. Sentencing Commission altered the crack cocaine sentencing guidelines to reflect the new 18-to-one ratio, and it made these guideline changes retroactive. More than 7,700 federal prisoners received sentence reductions based on the retroactive changes to the crack guidelines. The U.S. Sentencing Commission also reduced crack sentences for about 16,500 offenders in 2007. A recent study found that those who received retroactive crack sentence reductions in 2007 reoffended at slightly lower rates than crack offenders who served longer sentences. This shows that making crack sentencing reforms retroactive does not increase crime or endanger the public.
Current Crack Cocaine Mandatory Minimum Legislation
The Sentencing Reform and Corrections Act of 2017 (S. 1917) is a bipartisan bill introduced in the U.S. Senate on October 4, 2017, by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Senators Richard Durbin (D-Ill.), Mike Lee (R-Utah), Sheldon Whitehouse (D-R.I.), Lindsey Graham (R-S.C.), Patrick Leahy (D-Vermont), Jeff Flake (R-Ariz.), Dianne Feinstein (D-Calif.), Roy Blunt (R-Missouri), Cory Booker (D-N.J.), and Tim Scott (R-S.C.).
If passed into law, the bill would, among other things, reduce several federal (not state) mandatory minimum drug and gun sentences and make those reductions retroactive for some federal prisoners; make the Fair Sentencing Act of 2010 retroactive; expand the “safety valve” exception for federal drug mandatory minimum sentences; and allow some federal prisoners to spend more time in less restrictive forms of Bureau of Prisons custody if they complete rehabilitative programs and productive activities in prison.
The Smarter Sentencing Act (S. 1933) is a bipartisan bill sponsored by Senators Richard Durbin (D-IL) and Mike Lee (R-UT). The bill does not repeal any federal mandatory minimum sentences, but instead reduces prison costs and populations by creating fairer, less costly minimum terms for low-level federal drug offenders.
The SAFE Justice Act is a bipartisan bill sponsored by Representatives Jason Lewis (R-Minn.) and Bobby Scott (D-Va.) in the U.S. House of Representatives. The bill does not repeal any federal mandatory minimum sentences or reduce drug mandatory minimum sentences across the board, but instead limits the application of federal mandatory minimum drug sentences to the highest-level offenders, as Congress originally intended. The bill also fixes problems in the drug conspiracy and good time credit laws, reforms the federal compassionate release process, and permits prisoners to earn time off their sentences for completing rehabilitative programs, among many other reforms. FAMM supports the SAFE Justice Act.
The Problem: The FSA was a compromise measure that did not correct all the injustices of the crack-powder disparity. The FSA’s alterations to crack mandatory minimum sentences were not made retroactive – something only Congress can do, by passing legislation. This has left thousands of federal crack cocaine offenders in prison today serving mandatory minimum terms that Congress, the President, and the country have now repudiated as unfair and racially discriminatory. Additionally, the FSA’s 18-to-one ratio does not reflect the fact that crack and powder cocaine are the same drug in different forms, and that crack cocaine crimes are still punished more harshly than powder cocaine offenses.
- Make the Fair Sentencing Act retroactive, so that it applies to all federal prisoners still serving mandatory minimum sentences under the old, 100-to-1 ratio
- Reform the crack-powder cocaine mandatory minimum sentences to reflect a ratio of 1-to-1, rather than 18-to-1.
There have been numerous efforts in Congress to make the Fair Sentencing Act retroactive and to eliminate the 18-to-1 disparity. FAMM supports these reforms and hopes that they will be passed in Congress.