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Expert Available:New Cocaine Legislation Should Be Applied Retroactively, MU Expert Says

August 10th, 2010

Story Contact: Nathan Hurst, 573-882-6217,

The views and opinions expressed in this “for expert comment” release are based on research and/or opinions of the researcher(s) and/or faculty member(s) and do not reflect the University’s official stance.

S. David Mitchell, an associate professor of law at the University of Missouri School of Law.

S. David Mitchell, an associate professor of law at the University of Missouri School of Law.

COLUMBIA, Mo. – Congress just passed a new federal law reducing the punishment disparity between crack cocaine and powder cocaine convictions. However, an MU law expert applauds the legislation for remedying a knee-jerk and overly harsh sentencing structure but maintains that Congress has more work to do. S. David Mitchell, an associate professor of law at the University of Missouri School of Law, says Congress should apply the new crack punishment legislation retroactively.

“When the legislature reduces a penalty, it is a fundamental acknowledgement that the old penalty was far too harsh and that it no longer supports the intended goals of punishment,” Mitchell said. “Therefore, there should be an automatic retroactive application so that everyone who was convicted in the past should get the benefit of the new law.”

Before Congress passed this recent legislation, offenders convicted of possessing at least five grams of crack cocaine faced mandatory five-year sentences. At the same time, offenders convicted of possessing the more expensive powder cocaine, which has the same chemical composition as crack, had to be caught with more than 500 grams to receive the same five-year sentence. The new law still treats crack defendants more harshly, but reduces the discrepancy from a 100-to-1 ratio to an 18-to-1 ratio, meaning an offender must be caught with at least 28 grams of crack cocaine to receive the same mandatory five-year sentence as an offender caught with 500 grams of powder cocaine.

Mitchell believes there will continue to be legal issues regarding retroactivity when considering offenders who are in the pre-final judgment phase of their sentencing. In a recently published article in the American Journal of Criminal Law, Mitchell proposed a process of giving retroactive effect to such changes even to those whose cases may be final.

“There is now a window for defendants who were convicted while the law was being passed and before it was signed, who are still on direct appeal,” Mitchell said. “There are some who will argue that Congress’s failure to apply the law retroactively violates equal protection laws in the Constitution.”

Mitchell says that the new law not only reduces the unfair disparity between the two drugs, but will also reduce incarceration costs, a concern during the current economic climate.

“It will reduce incarceration costs because low-level, non-violent offenders who simply were in possession were given mandatory five-year sentences without discretion would be eligible for release,” Mitchell said. “Going forward, it will allow sentences of less than five years, which will reduce prison crowding.”

Mitchell joined the University of Missouri School of Law faculty in 2006 following a two-year position at the University of Colorado at Boulder. Before heading to Colorado to teach and continue his research on felon disenfranchisement, Professor Mitchell served as a law clerk for the Honorable Andre M. Davis of the U.S. District Court of Maryland.