Crack Sentence Disparity Remains

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Eric Holder

If only Lyndon Baptist had been sentenced after Aug. 3, 2010 instead of before. Yesterday U.S. Attorney General Eric Holder told the federal sentencing commission t last year’s law, which reduced sentences for crack cocaine, should apply to those already in prison.

Today the 9th U.S. Circuit Court of Appeals said it was powerless to apply the lower sentence retroactively to Baptist, who was sentenced to a five-year mandatory minimum sentence for conspiracy to possess 14 grams of crack cocaine.   By comparison, powder cocaine sentences were roughly 100 times less severe than sentences for crack-related crime.

During the sentencing of Baptist, U.S. District Judge Robert Whaley in Los Angeles called the five-year sentence “too much,” and “wrong from a moral sense” and that it made his “stomach hurt” to impose a sentence on someone who did no more than facilitate a local 14-gram crack transaction between his cousin and an informant.

Congress has agreed that the sentencing disparity is far too harsh on those sentenced for terms based on crack cocaine, as opposed to powder cocaine. Congress and judges have repeatedly found that crack sentence fall disproportionately on African-American defendants. Last year Congress passed the Fair Sentencing Act to make sentences between cocaine powder and crack more equal. President Obama signed it Aug. 3, 2010. But by then Baptiste had already been sentenced and his case was on appeal.

The three-judge panel said it was powerless to apply the law retroactively without express consent from Congress. “As individual judges, we believe that the result that we reach in this case – affirming a sentence of sixty months’ imprisonment for a minor drug offense under a law that Congress appears to have concluded was groundless and racially discriminatory – subverts justice and erodes the legitimacy of the criminal justice system.” They added they were powerless “to undo the injustice that we are compelled to authorize when we affirm the congressionally mandated sentence.” This was jointly signed by Judges Betty Fletcher, Stephen Reinhardt and Kim Wardlaw.

The opinion concludes with a call to Congress to make the law truly fair by making it retroactive to all defendants whose sentences had not been final as of the date of enactment.

On June 1, Holder told the U.S. Sentencing Commission, which is considering whether the shorter sentences should be retroactive, “We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity – who are not considered dangerous drug offenders – should be alleviated to the extent possible to reflect the law.”

Applying the law retroactively in federal courts would shorten sentences for about 12,000 inmates, according to the government.

Case: U.S. v. Baptist, 09-50315 (9th Circuit)

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