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Julie Stewart

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Well Done Congress, Now Make Fair Sentencing Act Retroactive

Posted: 08/ 4/10 05:11 PM ET

Yesterday, President Obama changed history once again by signing the Fair Sentencing Act of 2010 into law, reforming the notorious "100-to-1" ratio between crack and powder cocaine into a fairer 18-to-1 ratio and repealing a mandatory minimum sentence for simple possession of crack.

And lest people think I'm exaggerating, this reform truly is historic. The last time Congress repealed a mandatory minimum, President Nixon was in the Oval Office. For almost 25 years, courts have been required to treat crack cocaine crimes far more harshly than powder cocaine offenses, despite the fact that the two drugs are, well, the same drug. The sentencing reform advocacy community has been working on and waiting for crack sentencing reform for two decades. Yesterday's bill signing was historic.

Bipartisan support in Congress - a rare beast even in non-election years - got it done. With elections approaching fast, Republicans and Democrats ignored the temptation of "soft on crime" mudslinging and instead listened to the public, the experts, the courts, and the people who have lost decades of their lives to these racially discriminatory and overly harsh crack sentences. The message, both before and after the bill was passed, was remarkably the same: from Orange County, California to Houston, Texas to Bristol, Connecticut, the consensus is that the 100-to-1 ratio is unfair and irrational. The response to the new law has been overwhelmingly well-reasoned and calm - there have been no serious claims that the sky is going to fall, or that this is the end of urban civilization as we know it. Instead, some are saying Congress didn't go far enough and should have canned the disparity altogether.

Compare all this to 1986, another election year, and today's victory becomes even more historic. In the summer of 1986, Congress panicked after basketball star and Boston Celtics draft pick Len Bias overdosed on cocaine. With little to no investigation and plenty of hysteria, Congress passed the 100-to-1 ratio on a flotilla of justifications that have simply never panned out.

Led by Senators Richard Durbin (D-Ill.), Jeff Sessions (R-Ala.), and Tom Coburn (R-Okla.) and Representatives James Clyburn (D-S.C.) and Bobby Scott (D-Va.), moved this Congress beyond fear-mongering and alleviated an injustice. The real test of whether Congress has fully departed from its 1986 mindset will be making the new law's reforms retroactive so that thousands serving unjust crack sentences in prison can finally get a fair shake from the system.

Making the new 18-to-1 ratio retroactive is essential, and here's why: if you commit a crack crime today, you will be sentenced under the new law. But if you committed your crime two days ago, on August 2, you will be sentenced under the old 100-to-1 disparity. Unless the crack reforms are made retroactive, getting a fair sentence becomes a matter of luck, not a matter of justice. When a manufacturer issues a defective product, they don't just fix the problem going forward; they do a total recall. Recalling the defective 100-to-1 disparity for everyone will bring relief to thousands of families and increase respect for the justice system. Getting a just sentence should not depend on something as arbitrary as the date the crime was committed, especially when sentences for that crime have been unjust all along.

The people and organizations who deserve credit for this historic sentencing breakthrough are too numerous to list. Just as we found common ground to pass the Fair Sentencing Act of 2010, we can work together again to protect public safety while ensuring that all crack offenders, both past and future, get the benefit of that law's improved crack-powder ratio.