For once, there’s good news from the War on (some classes of people and some) drugs. On Friday, the new crack sentencing guidelines went into effect. The new guidelines will supposedly reduce the average sentence for crack possession from 10 years 1 month to 8 years 10 months. It’s something. But we’re merely slouching toward equality in sentencing, since there remains a huge disparity between sentences for crack and those for powder cocaine. But this is certainly a step. The Bush Department of Justice unsurprisingly opposed the change.
The real (and next) question is whether these new guidelines will be applied retroactively — that is, whether people who are currently incarcerated will get to appeal their sentences based on these new guidelines. The Criminal Law Committee of the American Judicial Conference has announced its support for retroactivity, despite the fact that it would surely flood the courts with appeals to harsh crack sentences. Harlan Protass writing in the LA Times says that the concern about clogging the courts is overblown:
Finally, retroactive application would place no extraordinary burden on the courts. The primary fact necessary to recalculate prison time — the amount of crack involved — already would have been determined in connection with offenders’ original cases. Thus, while the courts likely would be flooded with requests for changed sentences, they wouldn’t have to hold new hearings. Most motions could be dealt with on paper. Experience with other recent changes to federal sentencing laws has shown that the system is capable of revisiting many thousands of cases when justice so requires.
What’s more, it’s exceedingly rare, as Protass notes, to be presented with an opportunity to so neatly and completely reverse a real injustice. Making the new guidelines retroactive would reduce the sentences of over 20,000 current inmates.
So the change is small for sure. But it’s something. And if made retroactive, the new guidelines would become more than just a baby step.