We may be entering a new era of drug sentencing policy. For the first time, an effort by the United States Sentencing Commission to reduce the disparity in treatment between crack and powder cocaine offenders by somewhat reducing crack sentences has succeeded. Decisions of the United States Supreme Court, culminating most recently in Kimbrough v. United States and Gall v. United States, have clarified and expanded the flexibility federal judges have in sentencing under the post- United States v. Booker advisory sentencing guidelines. Political leaders have begun to accept the need for relaxation of at least some of the most severe drug sentencing laws. Scare tactics, like those recently attempted by Attorney General Mukasey in opposing the retroactive application of the Commission's cocaine amendments, no longer work as well as they did a few years ago. Perhaps the feared label "soft on crime" is beginning to lose a bit of its teeth, enabling more sensible drug sentencing policies to emerge. Whether we have reached a tipping point in attitudes toward drug sentencing remains to be seen, but the atmosphere certainly seems to be changing.
The United States Sentencing Commission deserves a good deal of credit for this recent turn. For over a decade, it has been thoughtfully examining and criticizing the disparate treatment of crack and powder cocaine. Its four reports to Congress on federal cocaine sentencing policy make a powerful case for reform. Until now, however, the Commission has been unable to translate its analysis into effective action. In 1995 the Commission tried to eliminate the disparity, but Congress rejected the effort. This time around, the Commission seems to have learned a great deal from that experience and has become a more effective political actor. Much work remains to be done, and the Commission needs to do more, but the 2007 report and amendments represent an important turning point.
David Yellen, The Sentencing Commission Takes on Crack, Again, 20 Fed. Sent. R. 227 (2008).