...I feel compelled to be here in person today, to join my colleagues in calling for the retroactive application of the guideline amendment.

...[W]e believe certain dangerous offenders including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories – should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The law should be made retroactive to all crack defendants. If they possessed a weapon during the offense, they already got a two point increase. If they used or a consecutive mandatory minimum five year sentence to their drug sentence.

If made retroactive, the change would apply to 12,040 offenders currently serving sentences under the old law and guideline. From the Federal Defender's testimony:

According to the Commission’s analysis, 12,040 offenders would be eligible to receive a reduced sentence based on the new base offense levels and deletion of the cross reference from the simple possession guideline. While this is a large number, it is significantly less than the approximately 20,000 offenders eligible for a reduction after the 2007 amendment.

The potential reduction in the sentence is greater, with average reduction of 37 months (from an average of 164 months to 127 months), representing 22.6% of the average sentence.28 Of the over 9,000 cases for which the Commission has sufficient records for analysis, the large majority of eligible offenders (81.7% or 7,482 offenders) would receive a reduction of thirteen months or more, of which 3,203 would receive a reduction of more than three years.29 Two hundred and eighty offenders would receive a reduction of more than ten years.

Another benefit of retroactivity: prison overcrowding will be reduced:

Reducing prison overcrowding weighs heavily in favor of making the crack amendment retroactive. The Bureau of Prisons is now 37% overcapacity, resulting in extreme overcrowding, unsafe conditions, and reduced capacity to provide treatment and training shown to reduce recidivism.41 Seventy thousand inmates will be triple bunked in three years even if new prisons are opened as projected.

The Federal Defenders oppose limiting those who receive the benefit:

The Commission also requests comment regarding whether, if it makes any part or parts of Amendment 2 retroactive, it should exclude various categories of defendants from eligibility for retroactive relief. It is unclear what prompted these proposals. They have no basis in history or principle, would intrude on the courts’ discretionary decision whether to consider and grant a motion, and would perpetuate the perception and the fact of injustice. We emphatically oppose them.

As to excluding those with higher criminal history categories:

Likewise, we emphatically oppose any compromise that would exclude any class of defendants based on criminal history category, such as those in Criminal History Categories V and VI. Excluding defendants in those two categories would deny any opportunity for relief to 37.6% of otherwise eligible defendants.

This would have an extreme racially disparate impact. In FY 2009, 84.4% of crack offenders in Criminal History Category V were African-American, and 87.3% of crack offenders in Criminal History Category VI were African-American, but only 6.5% of crack offenders in each of those Criminal History Categories were white. And this would serve no legitimate purpose.

There should be retroactivity for all. Congress already compromised when enacting the 18:1 ratio instead of the 1:1 ratio. Enough is enough. The old sentences are draconian and unfair. It's time for real and meaningful change, and that means applying the reductions across the board.

Four Commission votes are necessary to make the change retroactive.