For a generation, in one of the law’s gross inequities that has fallen unduly on African-Americans, 1 gram of crack cocaine was treated the same as 100 grams of powder cocaine in federal courts. It didn’t matter that the theory behind the law that crack — cocaine cooked in baking powder — was somehow more addictive and led to more violent crime soon proved false.
Congress moderated, but unfortunately didn’t eliminate, that disparity last year by passing the Fair Sentencing Act of 2010, reducing the ratio to 18 to 1. For anyone, that is, who committed a crack offense after the law went into effect last August. For those who committed crack-related crimes before then but have yet to be sentenced, it doesn’t. They are subject to the old mandatory minimum sentences — 5 years for 5 grams, 10 years for 50 grams.
As Adam Liptak reported in The Times, federal judges have expressed outrage about being forced to impose the harsher treatment with no discretion. While courts decide if the new law can be applied retroactively, the Justice Department has the discretion to do something now, building on a policy Attorney General Eric Holder Jr. began last May.
He called for the “reasoned exercise of prosecutorial discretion,” authorizing a tough but flexible approach. He asked prosecutors to take into account the kind of gross unfairness that results from applying the Fair Sentencing Act to someone who committed a crack offense in August 2010 but not to someone who did so the month before.
By statute, judges must give the mandatory minimum sentences to offenders subject to the old law. Even under the old law, however, prosecutors have considerable discretion. Through plea bargaining, they can also ask for sentences of five years rather than 10. If they decide not to prosecute in federal court, they can let a state prosecute with more flexibility in sentencing.
Under the Holder approach, they can still recommend that dangerous offenders serve the maximum sentence.
Prosecutors often fret about upsetting a judge when they don’t press for the maximum sentence. The judges who say they don’t want to perpetuate what Judge Michael Ponsor called “a Congressionally recognized injustice” are apt to be just fine with prosecutorial discretion. Meanwhile, Congress needs to try again and equalize the penalties for possession of crack and powder cocaine.