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Expert Available: Retroactive Cocaine Sentencing ‘Step in the Right Direction,’ MU Expert Says

July 05, 2011

Story Contact(s):
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.

COLUMBIA, Mo. – Last week the U.S. Sentencing Commission voted to retroactively apply the Fair Sentencing Act of 2010 to prisoners who were incarcerated under the earlier, harsher crack cocaine sentencing law.  S. David Mitchell, an associate professor of law at the University of Missouri School of Law and a criminal law expert, applauds the sentencing commission for remedying an overly harsh sentencing structure; however, he believes there is still work to do.

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

“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, the United States Sentencing Commission’s decision to retroactively apply the lesser sentence under the statute is appropriate. It allows everyone who was convicted in the past to get the benefit of the new law. While this decision is a step in the right direction, there is still a significant disparity between crack and cocaine sentences despite both drugs being pharmacologically identical. This shows that there is still unfair racial and class bias within the law.”

Last summer, Congress passed a new federal law reducing the punishment disparity between crack cocaine and powder cocaine convictions. 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 in possession of 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 says that the new sentencing mandate not only reduces the unfair disparity between the two drugs, but will also reduce incarceration costs, a concern during the current economic climate.

“Low-level, non-violent offenders who were given mandatory five-year sentences without discretion will now be eligible for release,” Mitchell said. “Going forward, this will allow sentences of less than five years, which will reduce prison crowding and greatly reduce incarceration costs.”

Mitchell’s published legal article in the American Journal of Criminal Law has been cited in multiple defense cases in support of retroactive application of new laws, even in those cases that already may be past final judgment. To read Mitchell’s article, visit:

Mitchell joined the University of Missouri School of Law faculty in 2006 following a two-year position at the University of Colorado at Boulder. Professor Mitchell will be exploring ex-offender reentry and reintegration next year as a Supreme Court of Missouri Faculty Fellow.