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

Date01 January 2014
Published date01 January 2014
Subject MatterArticles
Criminal Justice Policy Review
2014, Vol 25(1) 105 –130
© 2012 SAGE Publications
Reprints and permissions:
DOI: 10.1177/0887403412462384
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.
Interdistrict Variation in
the Implementation of the
Crack Retroactivity Policy
by U.S. District Courts
Angela K. Reitler1 and James Frank1
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.
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
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,

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