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Difficulties With Sentencing in Drug Crimes: Crack v. Powder Cocaine
Federal judges face a quandary. The disparity in sentencing guidelines between crack cocaine and powder cocaine was lessened by the Fair Sentencing Act of 2010, but Congress was silent about the law's application retroactively.
May 28, 2011 /Mens Interest PR News/ -- The Fair Sentencing Act of 2010 was heralded as an important step in reducing the disparity in sentencing guidelines for certain drug crimes. However, federal judges are still grappling with significant sentencing difficulties because they may not apply the new guidelines retroactively. This quandary leaves some defendants with harsher sentences simply because they were convicted before the date the guidelines changed.
This article will explore the history of sentencing guidelines in these drug cases, explain the issues judges are now facing and highlight what they are doing in light of these new difficulties.
History and Background
Federal sentencing guidelines have long been criticized for their disproportionate impact on minorities and the poor. The Anti-Drug Abuse Act of 1986 has been especially controversial in its punishment of crack cocaine compared to powder cocaine. Passed in the wake of Len Bias' death (who was to be the top pick in the 1986 NBA draft), the Act was meant to take a tough stance on the crack epidemic that was quickly engulfing major American cities. It was believed that crack was much more addictive, a catalyst for violent crime and a national security issue.
Under the Act, a person convicted of possessing five grams of crack cocaine (essentially five M&M candies) would face the same five-year minimum sentence as someone caught with 500 grams of powder cocaine (equivalent to about a pound of flour). This equates to a 100-to-one sentencing disparity.
Subsequent drug-crime convictions led to huge increases in the prison population, but did little to curb the crime the Act was meant to prevent. However, the wisdom of reliance on mandatory minimum sentences was questioned in light of cost overruns in jailing drug offenders and several key United States Supreme Court decisions.
- In 2000, the court ruled in Apprendi v. New Jersey that the Sixth Amendment requires a federal judge to base a sentence solely on the facts in a particular matter, and not simply upon the applicable sentencing guideline.
- In 2005, the Supreme Court made a fundamental change in how federal judges apply the guidelines through U.S. v. Booker. The court essentially made the guidelines "advisory" instead of mandatory.
Continuing the evolution from the 1986 guidelines, the Federal Sentencing Commission made several changes to the quantity standards in December 2007. In 2009 several bills were proposed to permanently eliminate the sentencing disparity. Ultimately, Congress passed the Fair Sentencing Act of 2010 (known as the FSA) which, among other things, abolished the sentencing differences between crack and powder cocaine.
Sentencing Problems Continue
It appears that the new guidelines do not apply to offenses committed before the FSA was enacted in August 2010. Congress will usually specify whether changes are to be retroactive, but the FSA offers no such guidance here, representing a departure from that of prior amendments. The Sentencing Commission has previously allowed amendments to apply retroactively. Its 2007 amendment affected more than 3,000 prisoners and granted them early release, while reducing presumptive sentences in more than 15,000 cases by an average of 26 months each.
Further, many judges believe that the FSA perpetuates the injustice the law was intended to remedy. Judge Michael Ponsor of the U.S. District Court for the District of Massachusetts wrote, "It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice" in imposing the old, mandatory minimum five-year sentence for crack-cocaine possession.
In a sarcastic description of the FSA, a judge for the U.S. Court of Appeals for the Seventh Circuit wrote, "The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive." Margaret Colgate Love, a former U.S. Department of Justice official who oversees pardon applications, believes the judges are tired of imposing sentences they see as too harsh.
A federal court in Kansas has held that the FSA does apply retroactively. In U.S. v. Terez Warren, the court essentially agreed with U.S. v. Douglas, where a U.S. District Court in Maine found it "gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair."
Dealing With a New Reality
In November, Senators Richard Durbin, D-Ill., and Patrick Leahy, D-Vt., wrote to Attorney General Eric Holder urging the DOJ to apply the new law to defendants who had committed their crimes before the FSA was passed. It remains to be seen whether more plea agreements or sentences will incorporate the new terms absent a congressional amendment, a Supreme Court ruling or Sentencing Commission action. The commission is expected to hold hearings in June on the retroactivity issue.
Article provided by Fife Mangnall & Mossinghoff PC
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