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Fair Sentencing Act of 2010

The Fair Sentencing Act of 2010 (Act) was enacted to reduce the disparity between the amount of crack cocaine and powder cocaine needed to trigger certain federal criminal penalties from a 100:1 weight ratio to an 18:1 weight ratio and eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine, among other provisions.  Prior to the Act, the Courts have already begun to reduce the sentencing disparity.

The Anti-Drug Abuse Act of 1986 implemented the initial disparity, then reflecting Congress’s view that crack cocaine was a more dangerous drug than powder cocaine.  After extensive research by the United States Sentencing Commission as well as other experts, it was determined that there is no scientific basis to conclude that crack cocaine is more dangerous than powder cocaine.  Quite frankly, some argue not without some support, that the hidden motive behind the disparity in sentencing was racial animus against African-Americans.  Generally, the most significant drug interdiction activities were initiated against African-Americans.  That resulted in numerous arrests where crack cocaine was recovered.  Hence, African-Americans were sentenced to longer prison terms relative to Caucasians who were arrested where powder cocaine was recovered.

The Act was enacted to improve the fairness of the criminal justice system at the federal level throughout the United States.  Although the 100:1 weight ratio remained unchanged from 1986 to 2010, in United States v. Booker, 543 U.S. 220 (2005), the Supreme Court ruled that the Sentencing Guidelines are advisory; Kimbrough v. United States, 128 S.Ct. 558 (2007), the Supreme Court ruled that the lower district courts may depart from the Sentencing Guidelines based upon policy considerations.

The United States Sentencing Commission recommended reforms in 1994 after a year-long study required by the Omnibus Violent Crime Control and Law Enforcement revealed that the sentencing disparity was unjustified because there was no scientific evidence to support the view that crack cocaine was more dangerous than powder cocaine.  Congress rejected the recommendations.  In April 1997, the Commission recommended that the weight ratio of crack cocaine be changed from 100:1 to a range of 2:1 to 15:1.  In essence, that would have raised the quantity of crack cocaine and lowered the quantity of powder cocaine required to trigger a mandatory minimum sentence.  Congress did not act on its recommendation.  In fact, it was not until July 29, 2009, the Fairness in Cocaine Sentencing Act (H.R. 3245) caused the introduction of the Fair Sentencing Act (S. 1789), a compromise bill to reduce the weight ratio from 100:1 to 18:1.  The Act was signed into law on August 3, 2010

Some members of Congress opposed the Act.  The Fraternal order of Police (FOP) as well as the National Sheriff’s Association (NSA) opposed the Act.

Key Points

  • The Act amended the Controlled Substances Act and the Controlled Substances Import and Export Act by increasing the amount of controlled substance or mixture containing a cocaine base (i.e. crack cocaine) that would trigger the mandatory minimum sentencing guidelines as well as increasing monetary penalties for drug trafficking
  • Eliminating the five-year mandatory minimum sentencing guidelines for first-time possession of crack cocaine
  • Directing the Commission to review and amend its sentencing guidelines to increase sentences for those convicted of committing violent acts in the course of a drug trafficking offense
  • Directing the Commission to incorporate aggravating and mitigating factors in its guidelines for drug trafficking offenses
  • Directing the Commission to announce all guidelines, policy statements, and amendments required by the act no later than 90 days after is enactment
  • Directing the Commission to study and report to Congress on the impact of changes in sentencing law under this act
  • Requiring the Comptroller General to report to Congress with an analysis of the effectiveness of drug court programs under the Omnibus Crime Control and Safe Streets Act of 1968, to be completed within one year of its enactment

Effective November 1, 2011, the Act applied retroactively to reduce the sentences of certain offenders already in custody for federal crack cocaine and related offenses. It is important to note that the Act does not eliminate all racial disparity.  The Act does not address the selective enforcement of the federal criminal laws by criminal justice agencies in light of the fact that although African-Americans account for 80% of those arrested for crack cocaine and related offenses, meanwhile Caucasians and/or Hispanics account for two-thirds of all crack cocaine users.  Finally, the Act does not address these same concerns at the state and local levels.