Criminal Law

Criminal Sentences Determined by Laws, Judges


The United States Sentencing Commission held a public hearing on June 2, 2011, about making the Fair Sentencing Act of 2010 retroactive. The Commission and the courts have received thousands of letters from inmates convicted under the old law and their family members, asking that the new rules be applied to reduce their sentences.

The Act passed Congress with bipartisan support and little opposition. If the Commission follows this lead, thousands of persons sentenced to greater than mandatory minimum sentences could see those terms reduced. Mandatory minimum sentences would remain however for those who received them. A decision won't be made for several months.

Original Article

  • After 25 years, Congress reduced sentences for crack cocaine offenders
  • The change reflects what's right and wrong with criminal sentencing
  • Lawmakers and judges struggle for fairness and equality in sentencing


"Don't do the crime if you can't do the time." These lyrics opened every episode of the 1970s police detective series "Baretta." The time, of course, means the sentence for the crime. Jail or prison sentencing has always been a topic of discussion for serious crimes.

The nature and seriousness of a crime generally determines what those sentences should be. But public opinion and the sensibilities of the time also guide lawmakers and judges in setting sentences. Nothing proves this better than the change Congress recently passed to the sentencing rules for persons guilty of possessing - not even selling - crack cocaine.

Throwing the Book at Crack Cocaine

In the 1980s, "crack" was a new and highly addictive form of cocaine. It flooded the streets of America's big cities including Washington, D.C and didn't escape Congress' notice. To help curb the problem, Congress passed extremely harsh sentences for possessing it.

Then, sentencing laws made the penalty for possessing one gram of crack the same as having 100 grams of regular cocaine. The trend of get-tough sentencing also produced the mandatory and controversial Federal Sentencing Guidelines.

Setting Sentences: A Matter for Lawmakers and Judges

The harsh crack sentences show the authority the law-making branch of government has in punishing crimes. The Constitution's Eighth Amendment provides the only check on this power. It prohibits cruel and unusual punishment for crimes.

When it comes to prison time, this standard boils down to whether the sentence fits the crime. It's called proportionality. In reality, the standard is hollow. Judges have given very long sentences, including life sentences, for stealing as little as $200 worth of property.

Offenders usually complain when they get a longer sentence than someone else who committed the same crime. This is called disparate sentencing. Under the Constitution's Equal Protection Clause persons committing the same offense should get similar sentences. In practice, judges can hand out very different sentences for the same offense. These sentencing differences are perfectly legal in most cases.

Stricter, but More Equal Sentences

Nobody sent to jail will complain the sentence is too short. But law enforcement, prosecutors, an outraged public and sensitive legislators might think so. The feeling that judges were too soft, plus the differences in sentences they handed out, led Congress and many states to adopt strict guidelines.

Congress listed all the factors to be used in sentencing and left judges no choice but to do the math and impose the result. Many thought the guidelines took away too much of the judges' power to impose the right penalty. Despite this criticism, they remained mandatory until 2005. The Supreme Court decided the rules violated the right to jury trial; judges once again had more freedom to make the sentence fit the crime.

Righting a Quarter-Century of Sentencing Wrongs

Which gets us back to crack sentencing. The US Sentencing Commission has recommended that Congress reduce crack sentences since 1995. It took 15 years, but members of both parties finally agreed the crack laws resulted in too many unfair prison terms. Congress has brought crack sentences down. They are still higher than for regular cocaine, but not as high as before.

The change only applies to future offenses. You ask if Congress really wanted to right a wrong, shouldn't this apply to persons convicted under the old law? That's called retroactivity. Congress didn't provide for it in the new law.

What You Can Do

The new law doesn't apply to old cases. However, the guidelines for crack offenses were reduced in November 2007, and those changes can be applied retroactively. This means anyone sentenced under the older guidelines could ask for resentencing under the ones from 2007. 

Getting a sentence reduction isn't a sure thing, but if you know someone who's serving a harsh sentence for crack possession under those rules, it may be worth asking a lawyer to check into the new guidelines.

Questions for Your Attorney

  • I know someone who was sentenced for crack possession before November 2007. Can this person's sentence be reduced?
  • Can the latest change in crack offense sentencing law be used to gain release on parole?
  • If a person makes good the harm done by an offense, can this lessen a sentence?
  • Will the sentence, and the sentencing process, be the same on a plea bargain as after a conviction?
Have a drug crimes question?
Get answers from local attorneys.
It's free and easy.
Ask a Lawyer

Get Professional Help

Find a Drug Crimes lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys

Talk to an attorney

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you