Attorney General Holder Pursues Fairness in Crack Cocaine Cases

Federal prosecutors will no longer charge crack cocaine defendants under a previous and more punitive law simply because their conduct predated the passage of the Fair Sentencing Act (FSA), Attorney General Eric Holder announced in a memorandum last week. 

The change reverses a policy that civil rights groups, federal lawmakers, judges and sentencing experts have criticized as unfair. The new policy will likely help dozens of defendants with cases pending at the time of the FSA’s enactment and others yet to be sentenced.

Before
the memo, the Justice Department continued to charge crack defendants
in cases that predate the new sentencing law under a 1986 law that
punished crack possession 100 times harsher than powder cocaine
possession, rather than under the FSA, which narrowed that disparity to
18-1. For months, the Justice Department defended that policy in court
arguing that since the FSA was silent on pending cases, it should apply
only to defendants whose crimes occurred on or after August 3, 2010,
when the law was enacted.

But
in a July 15 memorandum, Holder reversed course and instructed all
federal prosecutors to apply the fairer FSA penalties to all pending
cases that preceded the FSA’s passage. 

“The
goal of the Fair Sentencing Act was to rectify a discredited policy,”
said Holder in the memo. “Most importantly, as with all decisions we
make as federal prosecutors, I am taking this position because I believe
it is required by the law and our mandate to do justice in every case.”

However,
Holder said the revised policy does not apply to defendants who were
charged and sentenced before the FSA went into effect, even if they have
not exhausted their options for appealing their sentences.

The
decision to issue a new memorandum came after months of criticism from
civil rights groups and senators on the Judiciary Committee, along with a
great deal of litigation that resulted in a series of unfavorable court
decisions.

In November 2010, Senator Dick Durbin, D. Ill., and Senate Judiciary Chairman Patrick Leahy, D. Vt., sent a letter to Holder
arguing that the goal of the FSA was to “restore fairness to federal
cocaine sentencing as soon as possible,” and urging the department “to
issue guidance to federal prosecutors instructing them to seek sentences
consistent with the Fair Sentencing Act’s reduced mandatory minimums.”
The letter said that it was incumbent upon the Justice Department to
“not simply to prosecute defendants to the full extent of the law, but
to seek justice” as well.

In January, The Leadership Conference on Civil and Human Rights sent a letter to the attorney general urging him to change the department’s charging policy.
“The recent passage of the FSA emphatically reaffirms Congress’
intention that crack defendants are entitled to fair treatment,” the
letter states. “It makes no sense to apply punishment differentially for
defendants whose conduct occurred a few days apart.”

The
Leadership Conference letter cited a seminal court decision by U.S.
District Judge D. Brock Hornby, a Republican appointee, who took issue
with the Justice Department’s charging policy. Hornby said, “What
possible reason could there be to want judges to continue to impose new
sentences that are not fair over the next five years while the statute
of limitations runs? … I would find it gravely disquieting to apply
hereafter a sentencing penalty that Congress has declared to be unfair.”

U.S. District Court Judge Michael A. Ponsor echoed that sentiment in an April decision,
saying, “For a trial judge, the distastefulness of being forced to
continue imposing a rejected penalty becomes unendurable in light of the
fact that Congress acted partly because the injustice is racially
skewed and, as everyone now agrees, will fall disproportionately upon
Black defendant(s).”