U.S. Sentencing Commission approves retroactive crack sentencing guidelines

On June 30, 2011, the U.S. Sentencing Commission unanimously adopted proposed sentencing guidelines that, effective Nov. 1, 2011, would allow prisoners to petition to modify their sentences. This is good news because some law enforcement groups had opposed this move. This is good news because perhaps 12,000 current federal prisoners may get their very long sentences reduced by an average of three years! This is good news because this is one of the biggest steps that the Sentencing Commission could take.

But, sadly, this step is only a small step in the longer journey for justice. First of all, this change will have no effect on the statutory mandatory minimums. Those who are serving a 10 year sentence because they were convicted of distributing, or conspiring to distribute 50+ grams of crack cocaine, will still have to serve the 10 years. Even though the new mandatory minimum sentence starts at 280 grams, because Congress did not make the Fair Sentencing Act of 2010 retroactive, the statutory minimum sentence in effect at the time of the defendant's crime is not going to change. Congress may have recognized that sentences of 10 years for less than 280 grams were unjust, by contemporary standards, by changing the law but they did nothing about those cases already decided over the previous 24 years.

But the second, and bigger, point is that the enormous focus on the sentencing of crack cocaine cases has been tragically misplaced, because it has focused on the wrong "end" of the justice system. The heart of the problem is that U.S. Attorney offices around the country bring small-scale cocaine cases in federal courts where they can get extraordinarily harsh sentences because of the small quantity triggers (now 28 grams and 280 grams for minimum sentences of 5 and 10-years). A boatload of cocaine seized by the Coast Guard might contain one ton, that is, 1,000,000 grams! The team that organized that shipment is a large scale dealer and they belong in federal court. Small cases do not belong in federal court.

The thousands of small cases brought every year mean that DEA agents and other federal investigators and prosecutors are not working on major cases. Sadly, it seems everybody in Justice and Congress is satisfied with the handful of agents bringing a handful of major cases in a year.

Major cases are vitally important because the people involved are often involved in assassinations of police and political leaders, wholesale bribery and corruption, extensive money laundering, fabulous tax evasion and so forth. But federal agents are unavailable to do those cases when they are busy with thousands of neighborhood crack dealers (and their girl friends) -- dealers who are easily, quickly, and usually replaced soon after their arrests.

People concerned about the "injustice" of the excessively long "crack" sentences should focus their outrage on the U.S. Justice Department which tolerates wasting expensive federal anti-crime resources on unimportant criminals, not be outraged at the federal judges or the sentencing guidelines that have nothing to do with case selection.

Many fewer that one in a hundred American "criminals" go to federal court. The offenders who go to federal court should be those who commit terribly serious crimes. The federal cases should be those involving very complex schemes that require the smartest attorneys and investigators to unravel, and those that have nationwide or international implications.

A guy selling crack cocaine out of a local crack house does not belong in federal court. The crack was probably made in the back room of the crack house or a few blocks away. Local cases belong in local courts. Even the guy who is the biggest crack dealer in the city typically does not belong in federal court. If the Justice Department succeeded in shutting down the operators of the international cocaine pipeline that has been keeping every crack house in America fully supplied then it might be appropriate for it to work on totally local cases.

I commend the U.S. Sentencing Commission for having the courage to make the changes that it can in the face of continued political grandstanding about "crack dealers." Today, a lot of minor criminals selected almost at random by the Justice Department and now serving inordinately long sentences will have a shot at getting home to their families a few years sooner. This is not trivial.

But I fear that too many justice advocates and legal commentators will behave as though this is a problem of the justice system that is now largely solved.

In a way, this is kind of the like distinguishing those who are hurt and those who are responsible in the current financial crisis that has been going on for the past three years. American families lost $9 trillion in wealth in the lost value in their homes, pension funds, investments, etc. Tens of millions of Americans lost their jobs and are still out of work. So unable to pay bills, they are getting evicted from apartments and homes, and being foreclosed on. But the leaders and players in the financial industry who were responsible for the decisions that brought about the calamity are getting record bonuses and salaries, and not being brought into court to fight for their life savings.

Why does our political system not demand accountability from the powerful when they misbehave, but harshly punishes the the low-level people when they go bad?

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