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American Constitution Society for Law and Policy Brief on Fair Sentencing Act and Drug Policy Reform 2011

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“After” the War on Drugs: The Fair Sentencing Act and
the Unfinished Drug Policy Reform Agenda
By Kara Gotsch
December 2011

All expressions of opinion are those of the author or authors.
The American Constitution Society (ACS) takes no position on specific legal or policy initiatives.

American Constitution Society 11333 H Street, NW. 11th Floor

I

Washington. DC 20005

“After” the War on Drugs: The Fair Sentencing Act and the Unfinished Drug
Policy Reform Agenda
Kara Gotsch
In August 2010, U.S. President Barack Obama signed into law the Fair Sentencing Act,
legislation that limits the harsh punishments that were enacted during the 1980s for low-level
crack cocaine offenses. At the Oval Office signing ceremony, President Obama was joined by
Democratic and Republican congressional leaders who had championed reform.
That day, the President’s press secretary, Robert Gibbs, told a reporter, “I think if you
look at the people that were there at that signing, they’re not of the political persuasions that
either always or even part of the time agree. I think that demonstrates … the glaring nature of
what these penalties had … done to people and how unfair they were.”1
Gibbs was referring to the five- and ten-year mandatory minimum sentences prescribed
under federal law for defendants caught in possession for personal use or with the intent to sell as
little as five grams of crack cocaine. The drug penalties were the harshest ever adopted by the
U.S. Congress and were set at the height of the nation’s “war on drugs,” a time of significant
concern – and misunderstanding – about crack cocaine.
The Fair Sentencing Act was welcomed by civil rights and community activists, but the
compromise measure fell short of the changes they had sought for two decades. The new law
reduces, but does not eliminate, a sentencing disparity that disproportionately impacts African
Americans and entangles too many low-level drug offenders in the federal criminal justice
system. At the same time, the bipartisan cooperation that led to passage of the Fair Sentencing
Act was historic at a time when intense partisan wrangling over a broad range of issues on
Capitol Hill dominated debate and stymied action.
This year marks the 40th anniversary of the war on drugs, a war that was officially
declared by President Richard Nixon on June 17, 1971. The anniversary provides an opportunity
to assess the war’s weapon of choice – drug sentencing laws. This issue brief will consider the
efforts to pass the Fair Sentencing Act in response to the “war on drugs’” failed sentencing
policies of the past twenty-five years. It will also discuss the Act’s contribution to a broader
movement to address disproportionate punishment and ensure a fairer justice system.
I.

Mass Incarceration and Drug Sentencing

The United States leads the world in incarceration with 2.3 million people confined in
federal and state prisons and local jails. This nation’s “war on drugs” over the last four decades,
more than any other single factor, has fueled this historic incarceration boom. The number of
people behind bars for drug offenses has increased more than 12-fold since 1980. About half a


Kara Gotsch is the Director of Advocacy for The Sentencing Project. A version of this article was first published in
November 2011 by the Washington Office on Latin America.
1
Robert Gibbs, White House Press Secretary, Press Briefing (Aug. 3, 2010), available at
http://www.whitehouse.gov/the-press-office/press-briefing-press-secretary-robert-gibbs-832010.

1

million people are incarcerated for a drug offense today, compared to an estimated 41,000 in
1980.2
Until the late 1970s, the number of prisoners had remained relatively flat for nearly a half
century. Even as the country’s overall population grew by 55 percent from 1940 to 1970, the
number of prisoners nationwide remained around 200,000. But by the 1980s, the prison
population began to climb and has continued to increase ever since. What changed in the 1980s
were political initiatives responding to the emergence of a new drug, crack cocaine, in urban and
minority communities. Public fears of increased crime and violence, amplified by sensationalist
media accounts, created a political climate that favored promises to get “tough” on drugs by
stiffening drug offense penalties.
The Anti-Drug Abuse Acts of 1986 and 1988, signed by President Ronald Reagan,
instituted hefty mandatory minimum sentences for drug offenses, including mandatory penalties
for crack cocaine offenses that were the harshest ever adopted for low-level drug offenses.
Defendants possessing as little as five grams of crack cocaine were subject to a mandatory
minimum sentence of five years in prison. Defendants with at least 50 grams were subject to a
ten-year mandatory minimum sentence. The severity of crack cocaine penalties was especially
striking when compared to powder cocaine, a chemically similar substance, which, like crack
cocaine, is used more consistently across racial and ethnic lines than popular perception holds.
For powder cocaine, the threshold amounts to trigger the five- and ten-year mandatory sentences
were 100 times greater than for crack (e.g., 500 grams instead of five grams and five kilograms
instead of 50 grams). This huge gap became known as the 100-to-1 sentencing disparity.
The uneven approach to federal cocaine sentencing was quickly adopted by many state
governments, some of which enacted policies even more extreme than those being set at the
federal level. For example, in 1989, Missouri adopted a 75-to-1sentencing disparity between
crack and powder cocaine, whereby someone convicted of selling six grams of crack cocaine
faces the same prison term – a ten-year mandatory minimum – as a person who sells 450 grams
of powder cocaine. In 1990, Oklahoma set a 6-to-1 quantity-based sentencing disparity that
required a ten-year mandatory minimum sentence for possessing five grams of crack cocaine and
28 grams of powder cocaine.
II.

Consequences of U.S. Drug Laws

According to Congress’ legislative history, the federal drug sentences enacted during the
1980s were intended to impose stiff penalties on drug “kingpins” and high-level drug traffickers.
However, research conducted by the U.S. Sentencing Commission, an independent judicial body
created by Congress in 1984, found that the quantities for crack cocaine offenses were set too
low to accomplish the objective of punishing high-level traffickers. Moreover, the mandatory
minimum structure, which took away judicial discretion at sentencing, failed to differentiate
between defendants’ roles and culpability. In 2002, the Sentencing Commission warned that
crack cocaine penalties “apply most often to offenders who perform low-level trafficking
2

MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, A 25-YEAR QUAGMIRE: THE WAR ON DRUGS AND ITS
IMPACT ON AMERICAN SOCIETY (2007), available at
http://www.sentencingproject.org/doc/publications/dp_25yearquagmire.pdf.

2

functions, wield little decision-making authority, and have limited responsibility.”3 Sentencing
Commission data from 2005 found that low-level crack cocaine offenders, such as street-level
dealers, lookouts, and couriers, comprised 61.5 percent of the 5,033 individuals charged and
sentenced for crack offenses in federal court that year.4
The increased incarceration of drug offenders stemming from the 1980s policy changes
represented the most significant source of growth in the federal prison system. In 1980, the
4,749 federal prisoners convicted of drug offenses nationwide constituted one-quarter of the
federal prison population.5 By 2009, over half of federally sentenced prisoners (95,205) were
incarcerated for drug offenses.6 The accompanying cost to house federal prisoners has also
increased to $6.3 billion in 2011, up almost 1,800 percent since 1980.7 Despite this enormous
investment, federal prisons are operating at 35 percent above capacity.8 Double and triple
bunking is commonplace, as is the utilization of non-housing areas for sleeping quarters.
In addition to the disproportionately severe penalties associated with federal crack
cocaine offenses, which tended to be low-level and non-violent, the impact of the sentencing
disparity has fallen disproportionately on African Americans despite evidence that the
prevalence of drug use is similar across racial and ethnic groups, suggesting disparate
enforcement of facially neutral policies. An estimated two-thirds of all crack cocaine users are
white or Hispanic,9 and surveys of users suggest that they generally purchase their drugs from
sellers of the same racial and ethnic background.10 Nevertheless, 79 percent of federal crack
cocaine defendants in 2010 were African American.11 Generally, African Americans are more

3

U.S. SENTENCING COMM’N, REPORT TO THE CONGRESS – COCAINE AND FEDERAL SENTENCING POLICY (2002),
available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Drug_Topics/200205
_RtC_Cocaine_Sentencing_Policy/200205_Cocaine_and_Federal_Sentencing_Policy.pdf.
4
U.S. SENTENCING COMM’N, REPORT TO THE CONGRESS – COCAINE AND FEDERAL SENTENCING POLICY (2007),
available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Drug_Topics/200705
_RtC_Cocaine_Sentencing_Policy.pdf.
5
SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, BUREAU OF JUSTICE STATISTICS 519, tbl. 6.57 (Kathleen
Maguire ed., 2003), available at http://www.albany.edu/sourcebook/pdf/t657.pdf.
6
Heather C. West & William J. Sabol, Prisoners in 2009, BUREAU OF JUSTICE STATISTICS BULLETIN, Dec. 2010,
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p09.pdf .
7
Federal Bureau of Prisons, 2011 Budget and Performance Summary – Federal Prison System, available at
http://www.justice.gov/jmd/2011summary/html/fy11-bop-bud-summary.htm.
8
Budget Hearing Before the Subcomm. on Commerce Justice, Science, and Related Agencies of the H. Comm. on
Appropriations, 112th Cong. (2011) (statement of Harley G. Lappin, Diretor, Federal Bureau of Prisons), available
at http://appropriations.house.gov/_files/031511BOPDirectorStatement.pdf.
9
SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, RESULTS FROM THE 2005 NATIONAL
SURVEY ON DRUG USE AND HEALTH, Detailed Table J, Table 1.43A (2006).
10
Dorothy Lockwood, Anne E. Pottieger & James A. Inciardi, Crack Use, Crime by Crack Users, and Ethnicity, in
ETHNICITY, RACE AND CRIME 21 (Darnell F. Hawkins ed., 1995).
11
U.S. SENTENCING COMM’N, 2010 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl. 34, available at
http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2010/Table34.pdf.

3

likely to be sentenced to prison, and once there, serve more time for a drug offense than are
white drug defendants charged with comparable offenses.12
The racial disparity associated with crack cocaine sentencing contributed to a negative
perception of the U.S. justice system in communities of color.13 Indeed, U.S. District Judge
Reggie Walton testified before Congress that jurors in his courtroom had refused to convict
guilty defendants because “they were not prepared to put another young black man in prison
knowing the disparity existed between crack and powder in those … cases.”14 Judge Walton
believed the perceived racial injustice associated with crack cocaine sentences was ample
justification for reform. The Sentencing Commission also noted the obvious racial disparity
associated with federal crack cocaine cases, prompting the Commission to declare in 2004 that
“[r]evising the crack cocaine thresholds would better reduce the [sentencing] gap than any other
single policy change, and it would dramatically improve the fairness of the federal sentencing
system.”15
III.

Political Context for Reform

Many factors contributed to the political atmosphere that finally enabled this longdebated sentencing reform to move forward in 2010. In January 2005, the U.S. Supreme Court
deemed the sentencing guidelines issued by the Sentencing Commission discretionary,16
increasing public discourse around drug sentencing policy, particularly the 100-to-1 cocaine
sentencing disparity. There was a convergence of views, among the President, lawmakers,
sentencing and legal experts, civil rights and community activists, and just about every
prominent newspaper editorial board in the country, that the 100-to-1 cocaine sentencing
disparity was unjust and required immediate reform.
Over the course of 12 years, the Sentencing Commission issued four reports to Congress
on the consequences of crack cocaine sentencing policy, and each time, urged reform. After its
2007 report, the Commission proposed an amendment to the U.S. Sentencing Guidelines that
would lower the recommended sentencing range for crack cocaine offenses, a guideline which
judges consult when making sentencing decisions. The changes to the guidelines went into
effect on November 1, 2007, thereby reducing the average crack cocaine sentence by 15 months.
The mandatory minimums set by Congress did not change and judges were required to uphold
the mandatory sentences unless narrow circumstances allowed for a departure.
In December 2007, after holding a hearing and receiving comments from over 30,000
individuals and organizations, the Sentencing Commission voted to make its crack cocaine
sentencing guideline amendment retroactive. This proved to be very controversial among some
12

U.S. SENTENCING COMM’N, FIFTEEN YEARS OF GUIDELINES SENTENCING 122 (2004); BUREAU OF JUSTICE
STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS,1994 85 tbl. 6.11 (1998); BUREAU OF JUSTICE
STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2003 112, tbl. 7.16 (2004).
13
See generally PAUL BUTLER, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE (2009).
14
Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing Before the
Subcomm. on Crime and Drugs of the S. Comm. on the Judiciary, 111th Cong. (2009) (testimony of U.S. District
Court Judge Reggie Walton).
15
U.S. SENTENCING COMM’N, FIFTEEN YEARS OF GUIDELINES SENTENCING (2004).
16
United States v. Booker, 543 U.S. 220 (2005).

4

Republican lawmakers on the Judiciary Committees in the U.S. Senate and the U.S. House of
Representatives, as well as with then-Attorney General Michael Mukasey, who warned of a
resulting violent crime wave if retroactivity was broadly applied. However, federal law gives the
Commission the authority to make guideline reductions retroactive without requiring
congressional approval, and the Commission’s December 2007 vote stood. As of April 2011,
16,433 people in prison had been granted a sentence reduction (averaging 26 months). The
Commission’s analysis of recidivism among those released due to the 2007 retroactivity
amendment shows rates of recommitments to prison after release (30.4 percent) consistent with
recidivism rates for those crack cocaine offenders released prior to the availability of the
sentence reduction benefit (32.6 percent).17
The Sentencing Commission’s advocacy around crack cocaine sentencing reform was
critical to emboldening Congress to finally take steps to change the harsh mandatory minimum
penalties. First, the Commission’s extensive research and data collection provided an important
factual foundation, serving both to educate lawmakers and to provide community activists with
ammunition for reform. Second, since the Commission is comprised of sentencing experts,
including federal judges and lawyers, its recommendations enjoyed widespread credibility. Both
Democratic and Republican lawmakers considered the Commission a reliable source of
information and analysis.
In addition to the contributions of the Sentencing Commission, a committed and effective
advocacy coalition had developed many years earlier to educate Congress and the public about
the tragic consequences of this extreme sentencing policy. Civil rights organizations like the
National Association for the Advancement of Colored People (NAACP) and the American Civil
Liberties Union (ACLU), as well as criminal justice reformers including The Sentencing Project,
had been calling for elimination of the sentencing disparity since the Sentencing Commission
issued its first report to Congress on this topic in 1995. A reinvigorated campaign, overseen by
the Open Society Policy Foundation, brought together a progressive constituency that employed
aggressive lobbying strategies over a period of several years, including national lobby days in
Washington, DC, call-in days designed to flood Capitol Hill offices with calls for reform from
constituents, and ongoing media coverage featuring stories of those incarcerated under the harsh
sentencing regime. Over time, the coalition broadened to also encompass legal organizations,
faith-based groups (including Christian conservatives), and law enforcement.
In response to this pressure, legislation to address the crack cocaine sentencing disparity
had been introduced in every congressional session for over a decade, but little progress was
made. The breakthrough finally came in 2009, when Senator Richard Durbin (D-Illinois)
introduced his bill to eliminate the crack cocaine sentencing disparity. As Chairman of the
Senate Judiciary Committee’s Subcommittee on Crime and Drugs, Durbin held a hearing that
featured testimony by Assistant Attorney General Lanny Breuer in favor of eliminating the
sentencing disparity. Breuer’s statement marked the first time since 1986 that any administration
17

Memorandum from Kim Steven Hunt, Senior Research Assoc. & Andrew Peterson, Research Assoc., Office of
Research and Data, to Chair Saris, Commissioners & Judith Sheon, U.S. Sentencing Comm’n (May 31, 2011),
available at
http://www.ussc.gov/Research/Research_Projects/Miscellaneous/20110527_Recidivism_2007_Crack_Cocaine_Am
endment.pdf.

5

had endorsed the elimination of the disparity. This position, which was then repeated publicly
numerous times by Attorney General Eric Holder, sent an important message to the Democraticled Congress that sentencing reform was a priority for the Obama Administration. During his
campaign for president, Barack Obama endorsed the elimination of the disparity, and after his
election, the issue was highlighted on the White House website as an important civil rights
priority.
After many months of negotiations in the Senate, Senator Durbin’s legislation, the Fair
Sentencing Act, was brought before the Senate Judiciary Committee, where a compromise
version was approved. The compromise quickly passed through the Senate under unanimous
consent,18 and a few months later, it was approved by voice vote19 in the House. The resulting
legislation reduced the 100-to-1 disparity to 18-to-1. The five-year mandatory minimum was
now triggered when a defendant possessed for distribution at least 28 grams (1 ounce) of crack
cocaine. (Previous Sentencing Commission reports had defined a mid-level operator in the drug
trade as someone who sold an ounce of crack cocaine in a single transaction.) The penalty
triggers for powder cocaine remained unchanged, but the legislation also increased financial
penalties and raised the sentencing guidelines for cases in which a defendant uses violence or is
the leader of a drug operation. Senator Jeff Sessions (R-Alabama), a longtime conservative
leader, supported narrowing, but not eliminating, the sentencing disparity. Senator Sessions and
others on the Senate Judiciary Committee, both Republican and Democrat, refused to support
legislation that treated the two forms of cocaine the same, indicating the persisting influence of
long-held misconceptions that crack cocaine is more harmful than powder cocaine and makes its
users violent.
IV.

Bittersweet Victory

Passage of the Fair Sentencing Act in 2010 marked the first time in 40 years that
Congress eliminated a mandatory minimum sentence. The bill struck the five-year mandatory
minimum sentence for simple possession of five grams of crack cocaine, the only commonly
abused drug to trigger a mandatory sentence for mere possession. Under federal law, a
conviction for possession of other drugs would likely result in probation rather than a prison
sentence.
The last time Congress had approved any kind of sentence reduction occurred 16 years
earlier, when it created a “safety valve” that allowed judges to avoid a mandatory minimum
sentence if a defendant met certain criteria, including being charged with a non-violent offense
and having a minimal criminal record. Slow progress in achieving federal sentencing reform
signals how risky most politicians still consider drug and crime issues to be. By supporting a
18

Unanimous consent agreements permit expedited consideration of legislation, and are often used for routine or
non-controversial matters, but can also be employed for sensitive issues. “A Senator may request unanimous consent
on the floor to set aside a specified rule of procedure so as to expedite proceedings. If no Senator objects, the Senate
permits the action, but if any one Senator objects, the request is rejected.” U.S. Senate Reference, Glossary,
http://www.senate.gov/reference/glossary_term/unanimous_consent.htm.
19
In the House of Representatives, voice votes can be conducted in which individual Members’ votes are not
recorded: “As many as are in favor say ‘Aye’. As many as are opposed, say ‘No’.” On issues that lawmakers may
consider controversial, a voice vote allows legislation to move forward without linking each Member to a recorded
vote. See How Our Laws Are Made, http://thomas.loc.gov/home/lawsmade.bysec/consideration.html#voting.

6

proposal to lessen penalties, many in Congress feared they would be leaving themselves
vulnerable in the next election. Political cover was essential, including clear bipartisan support
and avoiding a roll call vote, which would have specifically identified a Member of Congress
who voted in favor of the sentence reductions. Despite the political hesitance, both Republicans
and Democrats spoke in favor of the Fair Sentencing Act and those who eventually sponsored
the legislation in the Senate encompassed some of the more conservative and more liberal
members of each party.20
Each year, an estimated 3,000 people will benefit from the sentencing changes, resulting
in an average reduction of two years for those impacted. The Sentencing Commission estimates
that the overall federal prison population will decline by 3,800 people in ten years as a result of
the reform.21
The advocacy coalition that helped advance the Fair Sentencing Act had sought the
complete elimination of the sentencing disparity. While most members of the coalition endorsed
the compromise legislation, coalition members remain committed to ending the disparity.
Despite the sentencing improvements, the new quantity triggers will still entangle people far less
consequential in the drug markets than the major traffickers, those who the federal government
claims to prioritize in its enforcement. This continued pursuit of low-level offenders absorbs
resources that would be better directed at apprehending more troublesome contributors to the
illegal drug trade, including large-volume operators and distribution organizations that are
particularly violent or linked to especially violent suppliers in other countries.
The reform coalition has also sought application of the new law to people sentenced
under the discredited 100-to-1 disparity. The Fair Sentencing Act did not account for retroactive
application of the new mandatory minimums, and many thousands of people in prison are still
enduring excessive mandatory sentences handed down under the old law. The stories of people
incarcerated weighed heavily on the reform debate. It would be cruel if the long history of
injustice would now be forgotten by policymakers.
While the new law became effective in August 2010, the final sentencing guidelines
implementing the sentencing scale took effect on November 1, 2011. At the same time, and as a
result of a unanimous decision by the Sentencing Commission reached in June 2011, the new
guidelines apply to people currently incarcerated for a crack cocaine offense. The Sentencing
Commission estimates that 12,000 people will benefit from a sentence reduction averaging 37
months.22 Applications for a sentencing guideline reduction are reviewed and decided by a
federal judge. Expedited releases will take place over several years.

20

Cosponsors of the Fair Sentencing Act of 2010 included Senators Dick Durbin (D-Illinois), Patrick Leahy (DVermont), John Kerry (D-Massachusetts), Jeff Sessions (R-Alabama), Tom Coburn (R-Oklahoma), and Orrin Hatch
(R-Utah).
21
U.S. Sentencing Comm’n, Prison Impact Model, FY2009 Datafile.
22
Memorandum from Office of Research and Data & Office of General Counsel, to Chair Saris, Commissioners &
Judith Sheon, U.S. Sentencing Comm’n (May 20, 2011), available at
http://www.ussc.gov/Research/Retroactivity_Analyses/Fair_Sentencing_Act/20110520_Crack_Retroactivity_Analy
sis.pdf.

7

Some law enforcement officials and many Republican Members of the House and Senate
Judiciary Committees urged the Commission to vote against retroactivity of the guidelines with
claims that moving average sentences from 13 years to 10 years would result in increased crime
and violence. However, Commissioners received public comment from over 40,000 citizens and
organizations in support of retroactivity. Moreover, recent data on recidivism among crack
cocaine offenders found no likelihood of increased rates of reincarceration resulting from shorter
prison terms. Attorney General Holder testified at a Commission hearing in June 2011 in
support of retroactivity, saying “[E]nsuring a fair and effective criminal justice system …
requires the retroactive application of [the crack cocaine] guideline amendment.”23 The Obama
Administration’s support for retroactivity boosted public attention and interest in the
Commission decision, although the Administration endorsed a more limited application than
what the Commissioners eventually instituted.
Moreover, after many months of pressure from the reform community, Attorney General
Holder reversed course on the U.S. Justice Department’s directive to federal prosecutors on cases
not yet sentenced for crack cocaine offenses committed prior to the Fair Sentencing Act’s
passage on August 3, 2010. For almost a year, federal prosecutors contested arguments by
defense counsel and some judges that those newly sentenced crack cocaine defendants could not
benefit from the mandatory minimum changes enacted by Congress if their conduct occurred
prior to the Act. After numerous rulings against the Justice Department’s position and with
several appellate court cases pending, Attorney General Holder issued a new directive in July
2011 that “pipeline” cases would now benefit from the reduced sentencing structure. On
November 28, 2011, the Supreme Court granted cert in Dorsey v. United States and Hill v.
United States and will consider whether the Fair Sentencing Act applies to those defendants who
committed an offense prior to enactment but were sentenced afterwards.
Additional options are available to better address the sentencing disparities for those
incarcerated, including bipartisan legislation introduced by Representatives Robert “Bobby”
Scott (D-Virginia) and Ron Paul (R-Texas) in June 2011, the Fair Sentencing Clarification Act.
This legislation would apply the new quantity triggers for the crack cocaine mandatory
minimums for all conduct committed prior to the August 2010 enactment of the Fair Sentencing
Act, regardless of the defendant’s sentencing date. Given the strong opposition to the law by the
current House Judiciary Chair, Representative Lamar Smith (R-Texas), near-term success for
this legislation is unlikely. A final opportunity for retroactive relief lies with President Obama
and his constitutional authority to grant prisoner commutations. On November 21, 2011, he
issued his first commutation ever. The beneficiary, Eugenia Jennings, had been sentenced to a
22-year sentence for selling about 13 grams of crack cocaine. Many thousands of federal
prisoners, like Eugenia Jennings, also deserve the President’s clemency.
V.

Building Momentum

In the United States, most law enforcement activity is conducted by state and local
governments; only a fraction of cases are pursued at the federal level. Drug offenders constitute
23

Retroactive Application of the Proposed Amendment to the Federal Sentencing Guidelines Implementing the Fair
Sentencing Act of 2010: Hearing Before the U.S. Sentencing Comm’n., (2011) (statement of Eric H. Holder, Jr.,
Attorney General of the United States).

8

18 percent of state prisoners and overall rates of incarceration for drug offenses are at an all-time
high.24 Moreover, among those incarcerated in state prison for a drug offense, six in ten persons
have no history of violence or high-level drug selling activity.25 The consequences of mass
incarceration brought on by the “war on drugs” persist at all levels.
Fortunately, 2009 saw the first decline in the overall state prison population in almost 40
years. The changes at the state level are linked to new policies enacted to curb corrections
growth and spending by investing in alternatives to incarceration, limiting time served in prison,
and enhancing reentry services to curb rates of prisoner recidivism. Progress in stabilizing
prison growth at the state level is in marked contrast to the federal prison system, which has
increased at 2.5 times the rate of state prisons since 2000, 4.1 percent vs. 1.5 percent.26
State policy reform may be a model for the federal criminal justice system, which
endures many of the same crowding and budget burdens as the states. Passage of the Fair
Sentencing Act was an important first step for the federal criminal justice system, but it is a long
way from accomplishing the broader reform agenda of reducing excessive penalties for low-level
offenses that significantly impact the size of the federal corrections population, limiting costs and
ensuring justice for all.
Efforts are underway among the advocacy community to build upon the sentence
reduction embraced by the Fair Sentencing Act and to capitalize on the reform movement that
has been gaining momentum at the state level. For example, during the federal deficit debates of
2011, a letter sent to Capitol Hill – calling for sentencing reforms that would stop the growth of
the federal prison system and reduce costs – was supported by 80 organizations, including the
American Correctional Association, Drug Policy Alliance, United Methodist Church, National
Organization for Women, and Leadership Conference on Civil and Human Rights. Reforms
outlined included:






making retroactive congressional reforms to crack cocaine sentencing;
diverting low-level offenders from incarceration;
enhancing elderly prisoner release programs;
expanding time credits for good behavior; and
eliminating mandatory minimum sentences for drug offenses.

In 2011, the Obama Administration proposed recalculating prisoner time credits for good
behavior by increasing time off by seven days to 54 days per year. The Administration also
proposed a program to earn 60 days off of a prisoner’s sentence for participation in rehabilitative
programs. For example, prisoners working at least 180 days in prison industries programs,
which maintain government contracts to produce items like furniture, solar panels, and clothing,
could receive up to 60 days per year off their sentence. Both provisions have been incorporated
into bipartisan legislation that was approved by the Senate Judiciary Committee in July 2011.

24

West & Sabol, supra note 6.
MAUER & KING, supra note 2.
26
West & Sabol, supra note 6.
25

9

With the changes in the makeup of Congress resulting from the November 2010
elections, the prospects for advancing a broader sentencing reform agenda are uncertain.
Representative Lamar Smith (R-Texas) was the only Member of Congress to speak in opposition
of the Fair Sentencing Act. In January 2011, he became Chairman of the House Judiciary
Committee; any substantive criminal justice reform initiatives in the House of Representatives
will be considered by his Committee first.
At the same time, some of Representative Smith’s Republican colleagues have been
vocal about the need for change. For example, a prominent Subcommittee Chairman on the
House Appropriations Committee, Representative Frank Wolf (R-Virginia), has applauded statelevel reform efforts to reduce incarceration levels and promote rehabilitation. Representative
Wolf has expressed interest in examining some of these efforts for federal implementation. He
has also been critical of funding requests to expand federal prison capacity and called for an
examination of ways to address federal prison overcrowding without increased spending, namely
through sentencing reforms. Moreover, for fiscal year 2012, his Committee awarded $70 million
in funding to Second Chance Act programs that help prisoners transition to communities after
incarceration in order to reduce recidivism. His support for the reentry initiative sharply
contrasted with Senate appropriators who chose to zero-out these funds while increasing
appropriations for federal prisons by $300 million over 2011 allotments.
VI.

Conclusion

A new awareness of the problems that plague the American criminal justice system is
clearly emerging. After taking office, President Obama’s national drug policy director, a
longtime police official, rejected use of the term “war on drugs.” It was a promising beginning
and the Administration’s support for reforming crack cocaine sentencing was consistent with the
rhetoric. After decades of adding and escalating mandatory minimum sentences, Congress and
the White House, for the first time, stepped away from the cycle of ever-harsher penalties.
Given the United States’ role as the principal architect and major proponent of a drug control
system that has emphasized “zero-tolerance” and criminal sanctions, the passage of the Fair
Sentencing Act is a milestone for U.S. policy.
Still, the drug war is deeply entrenched politically and institutionally. Achieving a more
profound shift in the nation’s approach to drugs will require sustained progress in reforming drug
sentencing laws to ensure fair and proportionate penalties, building on the success of the Fair
Sentencing Act. A more humane and effective approach to drugs will also require progress on a
broader reform agenda, including:





strengthening funding for evidence-based prevention and treatment;
re-investing in the communities that have been hardest hit by drug abuse and by the drug
war;
more selectively targeting enforcement to discourage drug market violence; and
embracing innovative community corrections systems that can provide effective
alternatives to incarceration.

10

How policymakers choose to respond will depend on the persuasiveness of the arguments for
reform and the commitment of the advocacy community to advancing the change.

11

 

 

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