AG Makes the Right Decision, Eventually

Over the past 40 years, the ACLU and criminal justice advocates around the country have worked tirelessly to overcome our nation’s obsession with the unjust and ineffective “war on drugs.” Although we have experienced disappointments during these years, in recent weeks, we have seen the tide turn in favor of fairer and more just drug policies. First, on June 30, the United States Sentencing Commission voted to apply retroactively the new Fair Sentencing Act (FSA) guidelines to individuals sentenced before the law was enacted.

Then, last week, after helping ensure fairness in federal sentencing by publicly supporting the retroactive application of the new FSA guidelines to some people, Attorney General Eric Holder has now issued revised guidance regarding the prosecution of pending crack cocaine cases. In the new guidance, the attorney general directed U.S. attorneys to charge pending cases consistent with the new FSA sentencing guidelines. Previously, the Department of Justice had instructed prosecutors to apply the “old law” in cases that took place before the FSA was signed into law.

The attorney general’s new position would require seeking sentences consistent with the FSA, for defendants who have not yet been sentenced, regardless of whether their conduct took place before or after the August 3, 2010 enactment of the FSA. Under the FSA, the crack and powder cocaine sentencing disparity, which falls disproportionately on African-Americans, was lowered from 100:1 to 18:1.

The new guidance is the fair and honorable position for the department and is consistent with its support for applying the new FSA guidelines retroactively to some offenders. While the Justice Department’s decision to change this guidance comes better late than never, I wonder how those who have been sentenced over the past year under DOJ’s “old” guidance will now receive justice.

Still, we are encouraged by the Justice Department’s recent commitment to racial justice and proportionality in sentencing and hope it will continue to work to ensure that our criminal justice system upholds these fundamental values.

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