Why Crack Cocaine Sentencing Reform Could Mean Mean Thousands Out of Prison — Including Cannabis Convicts

On December 22, 2018, President Trump signed the First Step Act into law, aiming to reduce the federal prison population. These changes include making crack cocaine sentencing reforms that were first passed in 2010 now retroactive, increasing the discretion of federal judges to avoid mandatory minimum sentences, and reducing the penalty of life imprisonment in the federal ‘three strikes’ statute to 25 years.

But according to Michael Collins, director of national affairs for the Drug Policy Alliance (DPA), the bill won't dramatically change the federal prison population. “The bill is called the ‘first step’ and it’s not more than that," he told Civilized. "We wanted broader reform but the politics dictated that this was the best we would get, especially under this president.”

How many people may be eligible for release?

The expansion of crack cocaine sentencing reforms alone will allow about 2,600 people who were sentenced before 2010, when the Fair Sentencing Act was passed, to be retroactively eligible to petition a judge for release, according to the Marshall Project. Under the Fair Sentencing Act, the sentencing disparity between crack and powder cocaine was reduced from 100:1 to 18:1.

Additionally, the bill expands federal judges' ability to apply the “safety valve” to a larger group of offenders, allowing them to avoid mandatory minimum sentencing by considering unique and extenuating circumstances in an offense. Hence, about 2,000 people will now be eligible for exemption from mandatory minimums each year, estimates the Congressional Budget Office.

A prisoner with good behavior ("good time credit") can also reduce their sentence by up to 54 days each year. This retroactive change may mean 4,000 prisoners are eligible for release.

“Behind each number is a person’s life,” Collins said. "We’re going to see real people get out of prison, get their lives back together, and see their families. We have parents and grandparents seeing their children and relatives again for the first time in decades. So the human value behind these raw numbers is hard to deduce.”

How many people are in federal prisons?

The federal prison population is about 181,000, which is about 8.6 percent of the total U.S. jail and prison population of 2.1 million (estimates of the prison and jail populations may vary slightly due to a variety of factors, including different definitions of who is incarcerated, different methodologies for data collected, and the difficulty of obtaining reliable information from municipal jails). It is important to note, however, that the vast majority (about 92 percent) of the incarcerated population is in state prisons, local jails, and other facilities.

More than half a million people (536,000) are held in pre-trial detention without being convicted. This population is larger than what many countries have in their prisons and jails combined. People may be in jails after they were recently arrested and will post bail shortly. But for people who are too poor to afford bail, they will remain behind bars until their trial, plea deal, or other outcome.

How many federal prisoners are convicted for drug crimes?

According to the Prison Policy Initiative, about 47 percent of people serving time in federal prisons are convicted for drug offenses. The Bureau of Justice Statistics reported in 2015, based on 2012 data, that over 99 percent of this group were convicted for drug trafficking. The average prison sentence for drug offenders was more than 11 years.

As the population of federal prisoners under the Bureau of Prisons expanded by 84 percent between 1998 and 2012, the number of drug offenders grew 63 percent. This means drug convictions — and increased sentences for those crimes — was a significant driver of the federal prison growth in that 14 year period.

What drugs are federal prisoners convicted for?

Crack or powder cocaine is the largest drug type related to federal drug convictions (54 percent). Prisoners sentenced for a crack cocaine offense had the longest average sentence, at more than 14 years.

Less than a quarter of convictions are related to methamphetamine, while marijuana makes up 12 percent, and heroin six percent. Prisoners sentenced for a marijuana offense had the shortest average sentence at over seven years.

Blacks made up 88 percent of those sentenced for a crack cocaine offense, while Latinos made up 54 percent of those sentenced for a powder cocaine offense. The bill’s reform of crack cocaine sentencing is at least a partial recognition that harsh sentences for crack in decades past placed a severe burden on black and other minority communities.

What role do firearms and other weapons play in federal drug convictions?

Almost one in four prisoners (24 percent) sentenced for drug offenses had a weapon involved in their offense. 6.4 percent of prisoners were given a mandatory minimum sentence pursuant to 18 U.S.C. § 924(c). This statute is known as “gun stacking,” meaning that a mandatory sentence between five and 30 years must be given when a person was previously convicted of two or more violent or drug trafficking charges while holding a gun.

According to the Families Against Mandatory Minimums (FAMM), these sentences must be served consecutively (back-to-back), and include cases where a gun was not actually used, where a gun was legally owned or registered, and even if a gun was simply found in the home but not used in the crime. The First Step Act restricts the use of gun stacking sentences to a more narrow group of charges.

“Certainly the bill’s impact falls short of where we want to go with criminal justice reform,” Collins said. “DPA and other organizations favor the complete elimination of mandatory minimums and retroactive application.”

He emphasized that the legislation requires additional funding to be realized, and urged Republican supporters especially to pressure William Barr, President Trump’s nominee for U.S. Attorney General, to implement the sentencing reforms.

Collins also urged caution against new, punitive drug policies that could increase prison populations. “The Republican Party and some of the Democrats have a ‘one step forward, two steps back’ approach to drug policy in general,” he said. “Some of the same people pushing for this sentencing reform are also pushing for expansion of mandatory minimums for the synthetic opioid fentanyl, often found in heroin. We have to do a lot of education otherwise we’ll just repeat our mistakes of the past in trying to take a punitive approach to these issues.”

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