increase, so do the penalties. But the federal guidelines are written
in such a way that there is a a 100-1 sentencing disparity between
crack and powder cocaine The sentence for 1 lb. of crack is equivalent
to 100 lbs. of powder cocaine.
As reported in a news article from the New York Times on December 19,
2013, “President Obama, expanding his push to curtail severe penalties
for drug offenses, is expected on Thursday to commute the sentences of
eight federal inmates who were convicted of crack cocaine offenses.
This is a Christmas miracle. Each inmate has been imprisoned for at
least 15 years, and six were sentenced to life in prison.” Here is
more about this interesting and exciting news:
It would be the first time retroactive relief was provided to a group
of inmates who most likely would have received significantly shorter
terms if they had been sentenced under current drug laws, sentencing
rules and charging policies. Most of the eight would be released in
In a statement prepared for release when the commutations are
announced, Mr. Obama said that each of the eight men and women had
been sentenced under what is now recognized as an “unfair system,”
including under a 100-to-1 sentencing disparity between crack and
powder cocaine offenses that was significantly reduced by the Fair
Sentencing Act of 2011.
“If they had been sentenced under the current law, many of them would
have already served their time and paid their debt to society,” Mr.
Obama said. “Instead, because of a disparity in the law that is now
recognized as unjust, they remain in prison, separated from their
families and their communities, at a cost of millions of taxpayer
dollars each year.”
The recipients include several high-profile inmates who have received
news media attention as examples of the effects of earlier
tough-on-crime drug sentencing policies, in which the quantities of
crack involved sometimes resulted in severe punishments. Many of them
were young at the time of their offense and were not accused of
Clarence Aaron of Mobile, Ala., for example, was sentenced to three
life terms in prison for his role in a 1993 drug deal, when he was 22.
Mr. Aaron’s case has been taken up by congressional critics of
draconian sentencing and by civil rights groups, and has received
significant media attention. Last year, the Justice Department’s
inspector general issued a report criticizing the department’s pardon
office for mishandling his clemency petition.
Margaret Love, a former Justice Department pardon lawyer who
represents Mr. Aaron, said she received a call informing her of the
decision on Thursday morning and called her client, who along with his
family was “very grateful.”
“He was absolutely overcome,” she said. “Actually, I was, too. He was
in tears. This has been a long haul for him, 20 years. He just was
speechless, and it’s very exciting.”
Mr. Obama, who has made relatively little use of his constitutional
clemency powers to forgive offenses or reduce sentences, is also
expected to pardon 13 people who completed their sentences long ago.
Those cases involved mostly minor offenses that resulted in little or
no prison time, in line with previous pardons he has issued.
But the eight commutations opened a major new front in the
administration’s criminal justice policy intended to curb soaring
taxpayer spending on prisons and to help correct what the
administration has portrayed as unfairness in the justice system.
Recipients also include Reynolds Wintersmith, of Rockford, Ill., who
was sentenced in 1994 to life in prison for dealing crack when he was
17, and Stephanie George of Pensacola, Fla., who received a life
sentence in 1997, when she was 27, for hiding a boyfriend’s stash of
crack in a box in her house. In both cases, the sentencing judges
criticized the mandatory sentences they were required to impose by
federal law at the time, calling them unjust.
In December 2012, The New York Times published an article about Ms.
George’s case and the larger rethinking of the social and economic
costs of long prison terms for nonviolent offenders. Mr. Obama
mentioned the article in an interview with Time magazine later that
day and said he was considering asking officials about ways to do
Around that time, a senior White House official said, Mr. Obama
directed Kathryn Ruemmler, his White House counsel, to ask the Justice
Department to examine pending clemency petitions to assess whether
there were any in which current inmates serving long sentences would
have benefited from subsequent changes to sentencing laws and policy.
The deputy attorney general, James M. Cole, returned the eight cases
with positive recommendations from the department about six weeks ago,
the official said….
Legislation pending in Congress, including a bill co-sponsored by
Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee,
Republican of Utah, would make the Fair Sentencing Act retroactive for
some offenders, and it would build into the system a process for
inmates to apply to a judge for case-by-case review of whether a
reduced sentence would be appropriate. The Obama administration
supports that bill, the White House said, as a more orderly and
regular way to ensure individualized analysis in addressing the
broader inmate population.
According to the group Families Against Mandatory Minimums, about
8,800 federal inmates sentenced for crack offenses before the Fair
Sentencing Act would be eligible to apply for a reduced sentence were
the bill to become law. “Commuting the sentences of these eight
Americans is an important step toward restoring fundamental ideals of
justice and fairness,” Mr. Obama said. “But it must not be the last.
In the new year, lawmakers should act on the kinds of bipartisan
sentencing reform measures already working their way through Congress.
Together, we must ensure that our taxpayer dollars are spent wisely,
and that our justice system keeps its basic promise of equal treatment
I am quite pleased Prez Obama is finally, finally, finally using his
constitutional clemency powers in a truly consequential and meaningful
way, and I am especially pleased that there are now eight more
defendants (and families) who get some relief from the unfair 100-1
pre-FSA crack sentences that nobody ever seeks to defend
substantively. However, the numbers reported above highlight that for
every new bit of post-FSA fairness achieved by these commutations, a
thousand other defendants (and families) must continue to live with
the consequences of a reform that has been interpreted only to prevent
future injustices and not fix past ones.
More broadly, though I do not want to turn a praiseworthy act by Prez
Obama into an excuse for more criticism, there is a cynical voice in
my head that is not only eager to fault the limited reach of this new
round of clemency, but also its timing.
Perhaps intentionally, these grants could (and perhaps should) be
marginalized as just a holiday tradition, not as a bold statement of
executive priorities. Even more worrisomely, as there is ongoing talk
of statutory sentencing reforms in Congress, these grants might
provide some basis for opponents of broader reforms to contend that
truly troublesome cases can and should be just handled and remedied by
the executive branch.
Better summing up my cynicism is a response to this news from
Professor Mark Osler: “Good news… But just one lifeboat off the
titanic. With no structural change, the ship is still sinking.”
* * * * *
Mace J. Yampolsky is a Board Certified Criminal Law Specialist, 625
South Sixth St., Las Vegas, NV 89101; He can be reached at: Phone
702-385-9777 or fax 702-385-300. His website is located at: