The day before the commission's decision on retroactivity, the Supreme Court ruled that judges may impose sentences below the range recommended by the federal guidelines based on their disagreement with the differential treatment of crack and cocaine powder. The case involved a crack dealer who was given a sentence of 15 years instead of the 19 to 22.5 years indicated by the guidelines.
In another decision issued the same day, the Court emphasized that appeals courts should review sentences that depart from the guidelines "under a deferential abuse-of-discretion standard." Both rulings elaborated on a 2005 decision in which the court made the sentencing guidelines merely advisory after concluding that mandatory guidelines required judges to determine facts that automatically triggered longer sentences, thereby violating the Sixth Amendment right to trial by jury.
But the sentencing commission and newly empowered judges can do only so much to address the irrational, unjust disparity between crack and cocaine powder. Only Congress can change the mandatory minimum sentences required by statute.
Members of Congress have proposed bills that would shrink or eliminate the gap between crack and cocaine powder, but some want to do so partly by increasing the penalties for powder possession. Since there's no reason to believe cocaine sentences are insufficiently severe, this approach is a cop-out. Two decades after fear of a new drug fad drove Congress to establish draconian crack sentences, legislators should not let fear of seeming soft on drugs stop them from correcting that mistake.