Retroactive Implementation of the FSA: It’s Only Fair

Jay Willis

During testimony before the U.S. Sentencing Commission on Wednesday, Attorney General Eric Holder advocated for a partially retroactive application of the Fair Sentencing Act of 2010. The Act mitigated much of the disparity in recommended sentence lengths between powder cocaine and crack cocaine crimes, which had drawn heavy criticism due to its grossly disproportionate effect on African-Americans.   Holder’s proposal would allow for the possibility of early release for currently incarcerated crack cocaine offenders that have neither weapons convictions nor lengthy criminal histories.

Holder’s suggestion quickly drew sharp criticism from Congressman and House Judiciary Chairman Lamar Smith of Texas, who opined that the Obama Administration has taken a position “supporting the release of dangerous drug offenders.”  Smith called the retroactive application of the Fair Sentencing Act tantamount to sending “a dangerous message to criminals and would-be drug offenders that Congress doesn’t take drug crimes seriously.”

However, this assessment seems unfair.  Assuming that the FSA tacitly acknowledges mistakes in federal drug sentencing policy, why punish the victims of these mistakes through the continued enforcement of admittedly anachronistic guidelines?  A recent Sentencing Commission study found no significant difference between the recidivism rates of crack offenders that served full sentences and those that gained a slightly earlier release under a analogous 2007 law that also mitigated crack cocaine sentences.  If there is no evidence that crack offenders released early are any more dangerous than those that serve pre-FSA entire sentences, allowing currently incarcerated individuals the chance at FSA-consistent sentences seems entirely within the spirit and intent of the law’s reforms.

In addition, both Holder’s proposal and the FSA itself contain important caveats that further undermine Congressman Smith’s objections to retroactive application of the FSA.  First, while the FSA significantly reduced the aforementioned sentencing disparities, it declined to eliminate them entirely, a nod to the contention that crack cocaine is somewhat more addictive and therefore more harmful to society than powder cocaine.  Even if the Sentencing Commission accepts Holder’s argument, U.S. law will remain very tough on crack cocaine crimes.  Second, Holder is not releasing inmates indiscriminately.  Instead, his sensible exceptions for violent and/or repeat offenders ensure that only non-dangerous offenders, whose sentences were the very target of the FSA, have a shot at a reduced sentence; offenders that have already proved themselves to be dangerous would remain in custody and off the streets.

It is politically difficult for any public official to advocate for policies that their critics can cast as “soft on drugs.”  Attorney General Holder and the Obama Administration should be commended for their reasonable and principled proposal that will allow a fairer outcome to those sentenced under the misguided drug policies of yesterday.


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