Retroactive Sentencing for Crack Cocaine Offenses

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 What Are Drug Crimes?

Every state in the United States as well as the federal government has laws which govern the possession, use, manufacture, and sale of certain drugs. Every offense has its own standards as well as different penalties, especially regarding the severity of the crime which is committed.

In general, drug crimes include offenses such as:

  • Possession;
  • Manufacturing;
  • Use; and
  • Distribution.

Drug possession is one of the most common types of drug crimes. Drug possession charges typically arise when an individual knowingly possesses a drug without authorization.

Generally, drug possession charges take into consideration the amount of the drug. In addition, the penalties may vary depending on whether the drug amount is considered for personal use or for sale and distribution.

Drug manufacturing, in general, involves cooking, or creating, synthetic chemical substances or extracting a natural drug. Packaging drugs for resale may also be categorized as manufacturing under the law. Examples may include growing illegal cannabis or cooking methamphetamines.

The use of illegal drugs is categorized as a criminal offense. This applies especially in cases where a drug requires a prescription from a doctor and the defendant does not have a prescription.

Distribution of drugs includes:

  • Selling;
  • Smuggling;
  • Trafficking; or
  • Delivering.

A drug crime may also include drug trafficking. This offense is largely dependent upon the amount of drugs which are involved as well as the type of drugs.

Controlled substances are drugs which are regulated by the government because they are considered to have a detrimental effect on an individual’s health and welfare. The Controlled Substances Act categorizes different classes of drugs into five schedules, based upon:

  • Assigned medicinal value;
  • Potential for abuse;
  • Safety to the public; and
  • Likelihood for dependency.

Controlled substances may include both illegal drugs as well as legal drugs. The legality of the majority of drugs is determined by how the substance is being used and what it is being used for.

For example, cannabis, or marijuana, is currently legal in numerous states. Some states allow recreational use of marijuana, while others only allow its use with a medical prescription.

A prescription drug is considered to be legal for those individuals who have a valid prescription. If an individual uses or possesses a prescription drug without a valid prescription from a doctor, they can be charged with a drug crime.

If an individual possesses or uses cannabis without a prescription in a state that requires a prescription, they can be found guilty of a drug crime.

Examples of drugs which are commonly associated with drug crimes include:

  • Cocaine;
  • Heroin;
  • Methamphetamines;
  • Ecstasy; and
  • PCP, or angel dust.

What is the Difference Between Cocaine and Crack Cocaine?

The pharmacological effects of powder cocaine and crack cocaine are nearly identical. Although powder cocaine and crack cocaine are essentially the same drug, they do have some important distinctions in a legal context, including:

  • Appearance;
  • Effects on the user;
  • Cost; and
  • Punishment.

Powder cocaine appears as a fine white powder. Crack cocaine is a grainy, hard, and brittle substance.

Powder cocaine is typically snorted. Crack cocaine, on the other hand, is usually ingested by smoking but can also be used intravenously.

The effects of crack cocaine are typically stronger as compared to cocaine. However, the effects are not usually as long lasting.

Crack cocaine is generally much cheaper than powder cocaine. Crack cocaine is highly addictive and is, therefore, associated with numerous negative health consequences.

Pursuant to federal laws, crack cocaine, historically, has been punished more harshly than powder cocaine. Although the 2010 Fair Sentencing Act lessened the importance of this distinction, the two substances are still punished differently.

Pursuant to federal laws, if an individual engages in trafficking 500 or more grams of powder cocaine, it carries a minimum sentence of 5 years in prison. With crack cocaine, however, if an individual simply possesses 5 grams or more without the intention to sell, it carries the same sentence.

With powdered cocaine, there is not a mandatory minimum sentence for possession. There were several studies in 2010 which confirmed the great disparate impact that crack cocaine laws have on marginalized communities, the Fair Sentencing Act was passed.

The key provisions of this act reduced the previous sentencing laws for trafficking crack cocaine in the following manner:

  • Less than 28 grams: Up to 20 years incarceration and $1-5 million in criminal fines;
  • 28 to 279 grams: 5 to 40 years incarceration and $5-25 million in criminal fines; or
  • 280 grams or more: 10 years to life incarceration and $10-50 million in criminal fines.

It is important to note that there are no longer mandatory minimum sentences for the possession of crack cocaine. Defendants who were convicted under the previous law can petition for their release under retroactive sentencing.

Retroactive sentencing, however, is not automatic. It must be requested by a defendant.

What is Retroactive Sentencing?

Retroactive sentences are new sentences which apply to previously sentenced crimes. The new sentences will change the time an individual will be required to serve in prison.

Because of ex post facto laws as well as constitutional protections, retroactive sentences may only reduce existing sentences and cannot increase them.

What is Retroactive Sentencing for Crack Cocaine?

There was a large disparity under federal laws between the sentences that are imposed for possession of crack cocaine and the sentences imposed for possession of powdered cocaine for over 20 years. For example, trafficking 500 grams or more of powder cocaine carried a mandatory minimum sentence of 5 years in prison.

In contrast, trafficking only 5 grams of crack cocaine carried the same mandatory minimum penalty. Additionally, there was not a mandatory minimum sentence for the mere possession of powder cocaine.

With crack cocaine, however, the mere possession of only 5 grams was punishable by the same 5 year mandatory minimum sentence as trafficking. The disparity in punishment of these two offenses has been very controversial, especially due to the fact that crack cocaine is most prevalent in urban, poor, and primarily African-American communities.

The majority of individuals who are convicted of crack cocaine offenses were African-American. Furthering this gap, a larger percentage of individuals who were convicted of using powdered cocaine were Caucasian.

In Response to these issues, the United States Sentencing Commission recommended that the sentences for powder cocaine and crack cocaine be more similar, a decision which applies retroactively. As a result of this law, certain individuals who are incarcerated for crack cocaine are now eligible for release.

Being eligible for release, however, does not automatically entitle the defendant to release. Prior to being released, the eligible prisoner will be required to appear before a judge who will determine if they are a danger to the community.

Should I Seek Legal Advice?

Appearing before a court can be an intimidating experience. If you or something you know was convicted of a crack cocaine related offense prior to 2010, it may be helpful to consult with a drug lawyer to determine if retroactive sentencing applies to your situation.

Your lawyer can advise you of your legal rights as well as your options according to the laws of your state. In addition, your lawyer will appear with you and represent you in court.

They can assist you with determining if retroactive sentencing is available in your case. If it is available, your lawyer will help you request it and represent you at your hearing.

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