The move could affect up to 20,000 prisoners and is already generating fiery opposition from the Justice Department. Both sides are scheduled to air their opinions publicly during a hearing scheduled for Wednesday in Washington, D.C. The debate over crack sentencing stems from changes last month to the guidelines that were the first to alter a more than two-decades-old policy that required offenders possessing crack cocaine to receive the same mandatory minimum jail time as offenders caught with 100 times as much powder cocaine.
The recent changes lowered the ratio anywhere from 75 to 1 to 25 to 1, depending on the quantity of drugs. The question now is whether that change will be applied to those already behind bars.
Supporters believe the decision to do so could move toward helping change a sentencing disparity that most experts agree is unfair and has disproportionately affected the black community. But it has faced fierce opposition from the Justice Department, which argues that the change "would jeopardize community safety" and "would impose enormous and unjustified costs upon the federal judicial system," wrote Alice Fisher, assistant attorney general for the criminal division, in a letter to the commission. What's more, she added, the changes would spur litigation that "would detract from our ability to investigate and prosecute current crime."
But judges don't agree. Writing on behalf of the Judicial Conference--which represents the country's federal judges--Judge Paul Cassell urged the commission to make the guidelines retroactive. While he acknowledges that retroactivity would be a burden, he suggested a series of administrative procedures that could lessen the burden.
"These challenges do not outweigh the fairness arguments in favor of retroactivity," he wrote.
By Emma Schwartz