Fair Sentencing Act of 2010

  • December 22, 2011
    Guest Post

    By Ezekiel Edwards and Emma Andersson. Edwards is the Director and Andersson is a staff attorney for the ACLU Criminal Law Reform Project.


    The Fair Sentencing Act of 2010 (FSA) is actually only kind of fair. The passage of the 2010 law, which reduced the crack to powder mandatory minimum ratio in federal cocaine sentences from 100:1 to 18:1, was a significant step in the direction of fairness. While we applaud this change, we also look forward to the day when Congress adopts the actually fair ratio of 1:1. In the meantime, the Supreme Court has granted certiorari on two FSA cases, Hill v. United States and Dorsey v. United States, both out of the Seventh Circuit. In these cases, the Court will decide whether people whose offense predates the enactment of the FSA but who were sentenced afterwards should be sentenced based on the old 100:1 ratio or the new 18:1 ratio. If the Court rules the wrong way, a sizeable class of people will be excluded from Congress’ attempt to restore fairness and racial neutrality to federal cocaine sentencing, and the kind-of-Fair Sentencing Act will become even less fair.

  • August 6, 2010
    Guest Post

    By Nkechi Taifa, Senior Policy Analyst at The Open Society Policy Center and the author of an ACS Issue Brief, "The 'Crack/Powder' Disparity: Can the International Race Convention Provide a Basis for Relief?"
    For nearly a quarter of a century the disparity between crack and powder cocaine sentencing has stood out as one of the most notorious illustrations of unfairness in the criminal justice system. Since 1986 low-level crack cocaine offenders selling sugar packet and candy-bar-weight quantities of crack cocaine have been punished far more severely than their counterparts who trafficked in large-scale quantities of powder cocaine. For example, one who possessed just 5 grams of crack cocaine received a mandatory felony sentence of at least five years without parole in federal prison, yet one selling 100 times that amount of powder cocaine -- 500 grams -- received the same five-year sentence. Far from being "tough on crime," this 100:1 quantity ratio of low level crack prosecutions amounted to what has been described as "junk food justice," primarily impacting African Americans at the bottom rung of the drug chain.

    As a result of bipartisan legislation passed by Congress and signed into law by President Obama on August 3, the five-year sentence for simple possession of crack cocaine has been eliminated. This represents the first time in 40 years that a federal mandatory minimum sentence has been repealed, making the Fair Sentencing Act (S. 1789) a historic legislative achievement. Although advocates fought long and hard for the complete elimination of disparate treatment in crack cocaine sentencing, the Act significantly lowered the 100:1 ratio for distribution of crack to 18:1. While not ideal, achieving this reduction with agreement across the political spectrum was extraordinary, particularly with mid-term elections looming. The new 18:1 ratio will bring relief to nearly 3,000 cases a year, reduce crack sentences by nearly 30 months and, according to the Congressional Budget Office, save the federal government $42 million dollars over a five year period.

    Rare bipartisan consensus in support of drug sentencing reform was the catalyst in the passage of the Fair Sentencing Act. Widespread agreement from not only civil rights and criminal justice groups that have historically worked on the issue, but also support from the White House and Justice Department, law enforcement and prosecutors, and political and religious conservatives, was influential. Partisan politics was tabled as Senators and Representatives from both sides of the aisle spoke to the critical need for reform. Rather than the political posturing of "tougher than thou" on crime, the overriding sentiment became "smarter on crime." A groundswell of bipartisan support culminated in "cracking" the disparity, and now it is critical that these same champions come together to support continued reform.

  • August 3, 2010
    Guest Post

    Pat Nolan is Vice President of Prison Fellowship, an outreach program to prisoners and their families, and leads the ministry's criminal justice reform arm, Justice Fellowship. For more information about drug policy reform, go to Justice Fellowship's Drug Policy Key Issue Page

    In an important victory for justice, President Obama today signed the Fair Sentencing Act of 2010, putting an end to the 100-to-1 disparity between punishments for crack cocaine and powder cocaine.

    The passage of the bill was a pivotal point in the fight to correct imbalances in our sentencing laws. The bill repeals a mandatory minimum sentence for the first time since mandatory minimums were introduced in the Nixon administration. It is important to note that this law had the support of Members of Congress from both sides of the aisle who joined forces in a remarkable display of non-partisan solidarity.

    A unanimous Senate voted to reform the disparity in March, and the House passed the bill at the end of July. With conservative sponsors such as Tom Coburn and John Cornyn joining progressives like Richard Durbin and Al Franken, Congress finally acted to correct this horrible injustice. Rep. Dan Lungren, a former California Attorney General, delivered a statement to the House endorsing the act, saying, "I believe that this is what justice should be about. This is a well-crafted bill, a good compromise; it serves the ends of justice and fairness."

    The bill was also supported by a vast number of associations and advocacy groups of all stripes. The Federal Law Enforcement Officers Association, the National District Attorneys Association and the International Union of Police Associations joined groups such as Prison Fellowship, Families against Mandatory Minimums, the National Association of Evangelicals, CitizenLink of Focus on the Family, members of the Congressional Black Caucus, and Asa Hutchinson, former head of the Drug Enforcement Administration.

    The original policy mandated a 10-year minimum sentence for a drug dealer caught with only a candy-bar-size amount of crack. Yet dealers selling powder cocaine had to fill an entire briefcase in order to receive the same 10-year sentence.

    Enacted in 1986, the disparity was largely based on the understanding that crack cocaine was more dangerous than powder cocaine because it was instantly addictive and provoked violent behavior. Since then, copious amounts of scientific evidence and U.S. Sentencing Commission analysis have shown these differences to be exaggerated or even false. Sadly, the disparity led to a hugely disproportionate number of black Americans being sentenced under this mandatory minimum law.