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Covid-19 Statement

PLEASE NOTE: To protect your safety in response to the threats of COVID-19, we are offering our clients the ability to meet with us in person, via telephone or through video conferencing. Please call our office to discuss your options.

Shazam Kianpour & Associates, P.C.
A Proven Criminal Defense Team

How do courts decide to reduce crack-cocaine sentences for certain offenses?

The court systems have a history of treating crack cocaine with a much more severe set of sentencing compared to crimes involving powder cocaine. The disparity between these crimes was harsh: an individual with 5 grams of crack would get the same punishment as if they had 500 grams of powder cocaine.

In 2010, lawmakers realized the unfairness of this sentencing structure and passed the Fair Sentencing Act. Lawmakers intended this law to help reduce the disparity in sentencing between these two offenses. At the time, the law only applied to criminal sentencing after its passage but in 2018 Congress passed the First Step Act to make the changes of the Fair Sentencing Act retroactive.

What does this mean for those who received harsh criminal sentencing prior to 2010?

It meant that they could seek judicial review to have the court lower their sentence. Unfortunately, lower courts are not using the same factors to determine how to reduce the sentence of those who qualify. So the answer to the question posed in the title was unclear. Some courts would simply apply the new penalties to see if the law warranted a reduction while others apply the facts of the individual case to a number of considerations including new case law, legal developments, or evidence of the individual’s rehabilitation to justify a change.

This does not seem fair. Is there a way to resolve this problem?

When lower courts disagree, individuals who are in the system can appeal the issue. This basically means they take the issue up the judicial chain of power. The highest level within the court system to review the issue, if it qualifies, is the Supreme Court of the United States.

The justices have agreed to review this issue and provide guidance.

The Supreme Court will do this by agreeing to hear a specific case that addresses this issue, Concepcion v. United States. Mr. Concepcion states his case qualifies for a reduction in his sentence under the two laws discussed above because:

  • New laws apply. If the courts were to sentence him today using the Fair Sentencing Act, they would give him a much lower sentence than the 19-year sentence the courts gave him in 2009. Since the First Step Act makes the Fair Sentencing Act retroactive, it applies to his case.
  • No longer a career criminal. Part of the reason for the long sentence in 2009 was the fact that the prosecution was able to establish Mr. Concepcion was a career criminal. This would no longer succeed, as the court had since vacated the conviction that supported this conclusion. Because it does not apply, the courts should take this into consideration when reviewing his sentence.
  • Rehabilitation. He points out that he has pursued educational opportunities and drug treatment during his time in prison.

The lower courts argued that he did not qualify for a reduction. Part of their argument was that they could not take additional considerations, like the impact of the career criminal change to his record or the rehabilitation, into account.

He is arguing two positions. First, that the law should require courts to take these other factors into consideration at a resentencing hearing. If the justices disagree, he says they should at least say the courts are permitted to consider these other factors. He argues the lower court judge said that the law did not allow such consideration, and that is why the court initially rejected the argument. If at least permitted to take these factors into account, he could still find success at his resentencing hearing in the lower courts.

What will the Supreme Court decide?

The easy approach is likely a middle ground ruling — that the courts are permitted, but not required, to take these factors into consideration. Regardless of the holding, the case shows the complexity of criminal law proceedings. Those who are attempting to navigate this system do not have to do so alone. Legal counsel can review the case, applicable case law and help review all options, better ensuring a more favorable outcome.