By Nicole Austin-Hillery, the Director and Counsel of the Brennan Center for Justice’s Washington, D.C. office
This week, the Supreme Court helped move our nation one step closer toward creating a fairer criminal justice system. In its ruling for Dorsey v. United States, the Court confirmed what advocates have long known: Under the Fair Sentencing Act (FSA), signed into law by President Obama in 2010, it is unjust to sentence individuals under the onerous guidelines that existed prior to enactment of the law. To do so, would, in the words of the Court, "create disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent." In effect, these individuals were charged and convicted but not yet sentenced before the new law took effect only by sheer coincidence of timing.
Such cases are commonly known as "pipeline" cases. The five justice majority ruled plainly that the less draconian sentencing provisions under the FSA apply for individuals sentenced after the new law's enactment but whose offense occurred before. This decision is not, however, simply about the correct application of the FSA. More importantly, it speaks to the work that remains to be done to ensure the complete eradication of a hideous disparity in our criminal justice system, which has disproportionately harmed poor and minority communities.
We are all too familiar with the history that led to this week's decision. Since Congress passed the Anti-Drug Abuse Act of 1986, we have seen harsh penalties for minor drug offenses. This law included mandatory minimum sentences for the distribution of cocaine. Most notably, the severe 100:1 sentencing disparity for offenses involving crack cocaine — the drug most closely associated with blacks and other minorities. This resulted in a major increase in the nation's federal prison population and exacerbated rates of incarceration for African Americans and Hispanics. Many states enacted similar laws, like New York's Rockefeller drug laws, which produced parallel disparities in state prisons.
We also know the rest of the story: how communities of color, particularly the black community, suffered the devastation that resulted from the loss of hundreds of thousands of men and women in the community. The ancillary effects on families as a result of their long absences ranged from loss of household income to loss of parental guidance and influence.
This ruling is a crucial step forward in the overall effort to restore fairness to those individuals who were directly impacted by these disparate laws, and to the criminal justice system that has long been, and continues to be, regarded as one that provides justice for some and injustice for others. However, Dorsey cannot and should not be the last word on ameliorating the impact of the drug sentencing laws as they existed prior to passage of the FSA. Although the sentencing disparity between powder cocaine and crack cocaine has been lessened, it has not been fully eliminated. The FSA also does not apply retroactively to everyone who is still serving a crack cocaine related sentence under the old law. This means that many who were sentenced under the disparate law continue to suffer from its effects. It will take continued work and support from courageous leaders, including those in Congress (some of whom have already introduced legislation to address these remaining issues), the Justice Department, and the White House to end this separate and unequal treatment.
Fully eliminating this disparity is the next crucial step in the fight to end racial disparities in our criminal justice system overall. It is one that we can ill-afford to circumvent if we want to truly adhere to our core democratic principle of providing a just and equal society for all.