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A break for the crack offender?

Court’s impact on Arkansas still unclear.

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It's been a big two months in the world of drug laws. In November, the U.S. Sentencing Commission reduced its recommendation for how much time a crack offender should serve.

That decision changed the average sentence to 8 years, 10 months — 15 months fewer than before. On Dec. 10, the U.S. Supreme Court handed down two opinions that allow judges to set sentences below federal guidelines. The next day, the U.S. Sentencing Commission ruled that its reduction of sentencing guidelines should be retroactively applied to crack offenders who are already incarcerated. The Commission estimated that 19,500 inmates were eligible for sentence reductions, including 179 in Arkansas.

All of these decisions sound like good news for those who have long said that crack sentences are racially motivated and too harsh. But their actual impact is murky at best. The Sentencing Commission's guidelines don't allow judges to ignore mandatory minimum sentences — five years for simple possession of five grams of crack, 10 years for fifty grams — which are set by Congress and can only be changed by Congress. And those who were sentenced under the old guidelines won't necessarily get an automatically reduced term. Each applicant for re-sentencing will be heard on an individual basis; if there are aggravating circumstances, such as a broader criminal history, the applicant may be deemed ineligible for a reduction.

The ruling is a huge bureaucratic challenge for the courts — sources couldn't remember when they previously had to apply so broad a retroactive ruling. In short, no one knows what the effect of the Sentencing Committee's decision will be until it goes into effect March 3.

According to James McCormick, clerk at the U.S. District Court for the Eastern District of Arkansas, his court is waiting for the Sentencing Commission to provide a list of names of those it believes to be eligible for sentence reductions. Once they get the names, McCormick and his staff will collect relevant court documents. At that point, judges, the federal public defender, district attorneys and probation officers will meet and determine how to proceed. The process of sorting out the legal issues at hand could take years, said one federal prosecutor.

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