A retroactive sentence is a new sentence that applies to a previously sentenced crime. Essentially, these sentences change the time a person will be required to serve in prison. Due to ex post facto laws and constitutional protections, a retroactive sentence can only reduce an existing sentence and not increase it.

Retroactive Sentencing for Crack Cocaine

For over 20 years, there has been a large disparity under federal law between the sentences imposed for possession of crack cocaine and the sentences imposed for possession of powdered cocaine. Specifically, trafficking of 500 grams or more of powdered cocaine carried a mandatory minimum sentence of 5 years in prison, where as trafficking only 5 grams of crack carried the same penalty. Moreover, there was no mandatory minimum sentence for mere possession of powdered cocaine. However, with crack cocaine, mere possession of just 5 grams carried the same 5-year mandatory minimum sentence as trafficking did.

This disparity has been extremely controversial, especially since crack cocaine is most prevalent in poor, urban, primarily African-American communities. The vast majority of convicted crack offenders are African-American. Making the disparity larger, a far larger percentage of people convicted of using powdered cocaine are white. In response, the U.S. Sentencing Commission recommended that the sentences for crack and powdered cocaine be brought closer together. This decision applies retroactively.

As a result, some people now in prison for crack cocaine are eligible for release. However, being eligible for release does not automatically entitle a prisoner to release. Before being released, an eligible prisoner will have to go before a judge who will then determine if he or she is a danger to the community.

Seeking Legal Advice

Appearing before a judge can be intimidating. If you or someone you know has been convicted of a crack cocaine related offense before 2010, you should consider contacting a criminal attorney to see if retroactive sentencing applies to your situation.