Interdistrict Variation in the Implementation of the Crack Retroactivity Policy by U.S. District Courts

• Author: James Frank,Angela K. Reitler
• DOI: 10.1177/0887403412462384
• Published date: 01 January 2014
• Date: 01 January 2014
• Subject Matter: Articles

Criminal Justice Policy Review

2014, Vol 25(1) 105 –130

© 2012 SAGE Publications

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DOI: 10.1177/0887403412462384

cjp.sagepub.com

462384CJP25110.1177/0887403412462384Cri

minal Justice Policy ReviewReitler and Frank

1University of Cincinnati, Cincinnati, OH, USA

Corresponding Author:

Angela K. Reitler, School of Criminal Justice, University of Cincinnati, PO Box 210389, Cincinnati,

OH 45221-0389, USA.

Email: reitleak@mail.uc.edu

Interdistrict Variation in

the Implementation of the

Crack Retroactivity Policy

by U.S. District Courts

Angela K. Reitler1 and James Frank1

Abstract

In 2007, after years of dissatisfaction with the 100-to-1 disparity between crack cocaine

and powder cocaine, the U.S. Sentencing Commission amended the U.S. Sentencing

Guidelines, reducing by two levels the base offense level assigned to threshold

quantities of crack cocaine. The amendment was subsequently made retroactive, which

required the federal courts to process approximately 20,000 prisoner motions for

sentence reduction. Using data collected from a case study of one particular district

as well as a survey of representatives from the 94 federal judicial districts, this study

examines the process of “crack retroactivity” implementation. The authors found that

court communities varied greatly with respect to their organizational arrangements,

procedures, and motivations. Although U.S. Probation and Pretrial Services played an

important role in every district, how and why districts organized to respond to crack

retroactivity varied. The study findings also indicate that sentencing procedures may

be another mechanism through which location affects sentencing outcomes.

Keywords

sentencing policy, crack cocaine, crack retroactivity, interdistrict variation, sentencing

procedure, case processing

The 100-to-1 disparity between crack and powder cocaine instituted by the Anti-

Drug Abuse Act of 1986 and accounted for in the U.S. Sentencing Guidelines

(USSG) has been one of the most divisive sentencing policies in the federal criminal

justice system. The disparity refers to amounts of the drugs; that is, to receive the

Article

106 Criminal Justice Policy Review 25(1)

same sentence as an offender trafficking in 500 grams of powder cocaine, a crack

offender need only traffic 5 grams of the drug. The U.S. Sentencing Commission

(USSC) repeatedly called for the reduction of the statutory disparity because of its

disproportionately harsh impact on Black offenders and low-level dealers and

because the unique harms associated with crack could be addressed through other

mechanisms in the USSG (USSC, 2007a). Congress rejected the USSC’s first

attempt to amend the USSG and ignored later attempts. In 2007, the USSC passed

the crack amendment, which reduced by two offense levels the base offense level1

assigned to threshold quantities of crack in the guideline governing drug offenses (i.e.,

USSG § 2D1.1), and then amended the retroactivity guideline (i.e., USSG § 1B1.10)

so the sentence reduction could be applied retroactively (see USSC, 2011b). The

USSC had forecasted that approximately 20,000 prisoners would be potentially eli-

gible for a sentence reduction, of which about 4,000 would be eligible in the year

following the amendment (Schmitt, Reedt, & Cohen, 2007). In order for these pris-

oners to fully benefit from the reduction, the courts would have to change their usual

procedures and instead very quickly process motions for sentence reduction for all

potentially eligible defendants upon the effective date of “crack retroactivity.” How-

ever, crack retroactivity was plagued with several legal uncertainties, broad discre-

tion in implementation, and wide variation in crack retroactivity caseloads among

the district courts. The USSC and the Administrative Office of the U.S. Courts (AO)

sought to manage implementation by preparing the district courts for the issues they

would face. They hosted “summits,” to which they invited stakeholders to attend as

court communities, and, along with national-level sponsoring organizations, advised

them on legal issues, suggested best practices for implementing the crack retroactiv-

ity policy, and encouraged each district to create a new procedure for processing

these cases (Administrative Office of the U.S. Courts, 2008).

By making the sentence reduction for crack-related offenses retroactive, the USSC

created a “natural experiment” for scholars interested in the intersection of sentencing,

case processing, policy implementation, and interdistrict variation. Crack retroactivity

“held constant” the nature and circumstances of the crimes and the defendants’ crimi-

nal histories, thus allowing scholars to observe how all of the district courts responded

to 20,000 of the same type of case. The current study examines how the district courts

implemented crack retroactivity, making several important contributions to the sen-

tencing literature. First, it offers an examination of the process of implementation of a

legal policy. Studies of implementation of legal policies in the criminal justice system

are rare (Saetren, 2005). Second, it is a large-N comparative study of the implementa-

tion of sentencing policy in federal court communities. Through examination of “the

similarities and differences in the operation and effects of systems,” large-N compara-

tive studies allow for theory building about the implementation process (Blomquist,

2007, p. 261). Comparative studies of the application of certain federal sentencing

guidelines have been limited or have involved only a few jurisdictions (Johnson,

Ulmer, & Kramer, 2008), which has not allowed for a clear determination of how and

why interdistrict variation exists (Nagel & Schulhofer, 1992). Nevertheless, it exists,