Several members of the Crack the Disparity Coalition after the House vote (l to r): Jasmine Tyler, Drug Policy Alliance; Laura Murphy, ACLU; Jennifer Seltzer Stitt, FAMM; Kara Gotsch, The Sentencing Project and Nkechi Taifa, Open Society Policy Center.
letters to your newspapers. Call radio programs. Make this a priority! Together we can make this happen! Next year we will work with you to urge the U.S. Sentencing Commission to make the changes to the crack guidelines retroactive. There is so much to do and we can’t do it without you. Please continue to check our website, www.famm.org, for updates and actions related to retroactivity. FG
What does the new crack law do? On August 3, President Obama signed the Fair Sentencing Act of 2010 (FSA) into law. The FSA increases the amount of crack cocaine required to trigger the five- and 10-year mandatory minimum sentences and changes the 100:1 ratio between crack and powder cocaine to a ratio of 18:1. Now, 28 grams of crack triggers a five-year mandatory minimum, and 280 grams of crack triggers a 10-year mandatory minimum. The new law also eliminates the fiveyear mandatory minimum for simple possession of crack cocaine. The law only applies to people in federal courts, not state courts.
Is the FSA retroactive? The FSA does not provide for retroactivity. However, if you are in prison but have not been sentenced yet, or your case is being appealed and you are waiting for re-sentencing, or if you have an attorney, ask your lawyer about whether and/or how this law may affect you.
Will FAMM work to make the FSA retroactive? Absolutely! FAMM is working to make the changes retroactive by getting a bill introduced and then passed by both houses of Congress and signed by the President.
Will the U.S. Sentencing Commission now change the crack guidelines? Yes. The FSA directs the U.S. Sentencing Commission to amend the crack sentencing guidelines so that they agree with the new law. The FSA gives the Commission “emergency authority” to amend the crack sentencing guidelines within 90 days of the date the FSA was signed into law (by November 1, 2010). On September 2, the Commission issued proposed “temporary emergency amendments” to the crack guidelines and gave the public until October 8 to submit comments on how the guidelines should be changed. FAMM has submitted comments to the Commission asking it to amend the guidelines in a way that minimizes the various sentencing enhancements asked for by Congress.
Five-year mandatory minimum
10-year mandatory minimum
Simple possession of five grams of crack
Old crack law
Five grams crack 500 grams powder cocaine (100:1 ratio)
50 grams crack 5,000 grams powder cocaine (100:1 ratio)
Five-year mandatory minimum sentence
New crack law (FSA)
28 grams crack 500 grams powder cocaine (18:1 ratio)
280 grams crack 5,000 grams powder cocaine (18:1) ratio
No mandatory minimum
Will the Commission make its changes to the crack guidelines retroactive? We do not know. While the Commission has the authority to make guideline changes that benefit prisoners retroactive, it does not have to. We do not know if or when the Commission will make the crack guideline changes retroactive, but we are urging the Commission to do so as soon as possible. We will report to you on any retroactivity developments as we learn about them.
Can FAMM tell me how the new law or new guidelines will affect me or my loved one? No. Please remember, FAMM cannot provide legal advice, representation, referrals, or guidance to those who need legal help. If you or your loved one need legal advice, you should talk with an attorney.
Pardoned anyone lately, Mr. President? Members have asked: Has President Obama granted any commutations or pardons yet? Unfortunately, as of September 2010, the answer is no. FAMM does not know if or when President Obama will begin granting commutations or pardons. If you or a loved one wants to request a commutation of sentence, visit http:// www.famm.org/GetHelp/Clemencylinksandresources.aspx for links to application forms from the Office of the Pardon Attorney and for FAMM’s guide to filing a federal clemency request.
Fall 2010
FAMMGram
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