In April 2007, the U.S. Sentencing Commission lowered the sentencing guidelines for crack. That move was largely uncontroversial as there was wide bipartisan belief that the 100-to-1 crack-to-powder ratio for cocaine offenses were too harsh. More controversial, however, was the Commission’s decision to make the lower sentences retroactive. This past February Attorney General Michael Mukasey asked Congress to pass legislation barring retroactivity for most of those convicted under the old guidelines, warning that failure to act would make 1,600 convicted crack dealers eligible for immediate release and could lead to decreased sentences for more than 20,000 crack dealers overall. The New York Times opined at the time:

Attorney General Michael Mukasey tried to scare the House Judiciary Committee on Thursday into blocking a responsible plan by the United States Sentencing Commission to address the gross disparity in penalties for possession or sale of crack cocaine and those for powder cocaine offenses. His alarm is unwarranted.

Fast forward to yesterday when Legal blog Watch reported:

Crack Cases Clog Federal Courts

A new report from the U.S. Sentencing Commission says that federal courts handled more than 17,000 cases this year brought by crack cocaine offenders seeking shorter prison sentences. The cases came in the wake of retroactive amendments to the federal sentencing guidelines that reduced prison terms for crack cocaine offenses.

Heritage Foundation Senior Legal Fellow warned in March of this year:

Proving a possession of crack-cocaine case is relatively easy. Thus, when choosing how to prosecute a defendant involved in a case involving drugs, guns and other violence, the government often takes the path of least resistance; sometimes that means prosecuting the drug charge and not developing the gun or violent crime aspects of the case.

Prosecutors make deals with defendants because it serves fairness and prosecutorial economy. Over 90 percent of criminal cases are resolved by plea bargain. Defendants who plead guilty do so in exchange for the prosecution dropping other charges.

This complicates things. For example, a prisoner who received a 10-year sentence for dealing crack but wasn’t charged with a weapons offense due to prosecutorial discretion may get a few years knocked off of his sentence, while a prisoner with a 10-year sentence for the same weapons offense alone gets nothing. That isn’t justice.

Even more worrisome, no one is keeping track of these early released convicts:

So, who is getting released early? Are federal judges following the Sentencing Commissions’ policy guidelines? Are judges releasing armed career criminals because the law, as written, and Supreme Court precedent demand that result? How many of those just released have committed new crimes? No one is keeping track.

If crime rates rise, especially in inner-city neighborhoods, policymakers will need to know if retroactivity is to blame. Without good statistics, there’s just no way to answer that question.