Ted Kennedy On Retroactivity Decision For Crack Cocaine Offenders

December 11, 2007 -- WASHINGTON, DC— Today, Senator Edward M. Kennedy, Chairman of the Health, Education, Labor and Pensions Committee, released the following statement in response to the United States Sentencing Commission’s decision to apply retroactivity for crack cocaine offenders’ sentences.

“I commend the Commission for retroactively applying reduced sentences for crack cocaine. Nearly 20,000 non-violent, low-level drug offenders will be eligible for a reduction in the excessive prison terms they received in the past because of the unacceptable disparity in the sentencing guidelines between crack cocaine and powder cocaine offenses.

Those who break the law deserve to be punished, but our system says that punishment must be proportionate and fair. The current sentencing disparity between crack and powder cocaine is neither.”

Senator Kennedy sent a letter to Judge Richardo H. Hinojosa, Chairman of the United States Sentencing Commission, urging retroactivity. The text of the letter is below.

November 9, 2007

The Honorable Ricardo H. Hinojosa

Chairman

U.S. Sentencing Commission

One Columbus Circle, N.E.

Washington, D.C. 20002-8002

Dear Judge Hinojosa:

The American criminal justice system is built on a tradition of rational, principled judgment. Those who break the law deserve to be punished, but our system says that punishment must be proportionate and fair. The current sentencing disparity between crack and powder cocaine is neither.

I commend the Commission’s decision to eliminate unwarranted disparities in the federal crack and powder laws. Reducing the sentencing range, even moderately, will affect 78% of federal defendants. I strongly urge the Commission to go further, and make the amendment retroactive.

The Amendment meets the three conditions the Commission has identified as justifying retroactivity: it would make the guidelines more proportionate, would be of significant magnitude, and could be formulaically applied.

In the 21 years that the disparity in sentencing has been in effect, it has overstated the relative danger of crack cocaine to powder, contributed to the rapid growth of our prison population, disproportionately affected African Americans and the urban poor, and used limited federal resources on low-level street dealers rather than on major drug traffickers. Equally significant, according to the Commission’s own analysis, the disparity and its impact – no matter how unintended – have created both real and perceived injustices that undermine public faith in the legal system.

The Commission’s own analysis suggests that if the amendment is made retroactive, nearly 20,000 non-violent, low-level drug offenders will be eligible for a reduction in their sentences, sentences so harsh that they will no longer be imposed on people who commit the very same offenses in the future. Fairness alone dictates that the Commission make the Amendment retroactive.

The decision to make the amendment retroactive would be based in precedent. In the past two decades, the Commission has made every amendment that modifies the calculation of drug sentences retroactive. The principles of consistency and proportionality should likewise lead the Commission to make the Amendment retroactive. I’m prepared to indicate our support for a decision publicly in favor of retroactivity, and will work with all interested parties to build public and Congressional support for such a decision.

With respect and appreciation,

Edward M. Kennedy

Source: Senator Ted Kennedy

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