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7:57pm June 21, 2012

Retroactivity: Supreme Court Rules on Crack Cocaine Sentences

FSA-SCOTUS

The U.S. Supreme Court ruled today that the Fair Sentencing Act of 2010, which reduced the disparity in federal sentencing between crack and powder cocaine, will also apply to people whose offenses occurred before the law was passed but were sentenced after it passed.

The Court ruled that people who committed offenses before the enactment of the Fair Sentencing Act – and were sentenced after its 2010 passage – should be sentenced based on the new 18:1 ratio.  The difference in the sentences between crack and powder cocaine have long been protested because of the racial disparity in time served for drug use and possession related to crack cocaine.

After 17 years of legislative efforts during Republican Congresses with Democrats in the White House and Democratic Congresses with Republicans in the White House, the legislation to reduce — but not equalize — the crack/powder cocaine sentencing disparity  passed through both the House and Senate in 2010.   That legislation was the Fair Sentencing Act of 2010.  The Fair Sentencing Act reduced the sentencing disparity between powder and crack cocaine sentences from 100:1 to 18:1.

The chief author of the Fair Sentencing Act in the House was Rep. Bobby Scott (D-VA) and the chief sponsor in the Senate was Sen. Dick Durbin (D-IL).  Scott worked the bill though the House and Durbin successfully pushed Republicans in the Senate to agree to the 1:18 reduction.   The legislation was signed into law by President Obama on August 3, 2010.

The Supreme Court ruling does not apply to all crack cocaine defendants but it applies to more than before.

The Court’s decision determined that Congress intended to have the new 18 to 1 sentencing differential between powder and crack cocaine apply to cases that were pending for sentencing when the Fair Sentencing Act passed on August 3, 2010, as opposed to applying the 100 to 1 sentencing differential in effect when the defendants’ violation occurred.

“Under the 100 to 1 sentencing differential, selling 5 grams of crack cocaine resulted in a 5 year mandatory minimum sentence whereas selling 500 grams of powder cocaine would be required to trigger the same 5 year mandatory minimum sentence.  Under the the Fair Sentencing Act, 28 grams of crack cocaine is now the threshold for a 5 year mandatory minimum sentence, reducing the ratio from 100 to 1 to 18 to 1,” said Rep. Scott, who authored the Fair Sentencing Act in the House.

The ruling is narrow and applies only to defendants whose sentences were pending.  The ruling does not grant retroactive sentences to all who are imprisoned on a crack cocaine sentence. Legislation in the House offered by Scott, H.R. 2316, would permit the sentencing court to retroactively apply the Fair Sentencing Act to all people where appropriate.  A second bill, H.R. 2242, which has 16 cosponsors, would eliminate the different penalties for crack cocaine and powder cocaine, as well as eliminate mandatory minimum penalties for all cocaine offenses.

Responding to the Supreme Court’s decision, Laura Murphy, Director of the American Civil Liberties Union’s Washington office said, “The Fair Sentencing Act was enacted in response to Congress’s pressing concerns with racial disparities and fairness in sentencing. Today’s ruling recognizes that it would be inconsistent with Congress’ goal of ending the legacy of racial bias in cocaine sentencing to allow the discredited and flawed 100:1 ratio to govern any sentence imposed after the FSA’s enactment.”

“We still have more injustice to rectify regarding the unfairness in cocaine sentences.  Many crack offenders are still serving mandatory 100 to 1 sentences that were imposed prior to the effective date of the The Fair Sentencing Act.  These offenders remain in prison even though Congress has passed a law that has concluded that the 100 to 1 differential was not fair,” said Rep. Scott in a release.

According to the ACLU, The The Fair Sentencing Act was passed to correct the problems with the Anti-Drug Abuse Act of 1986, which created an unfair sentencing scheme that unequally punished comparable offenses involving crack and powder cocaine — two forms of the same drug – and resulted in racially biased sentencing.

Steven R. Shapiro, the Legal Director of the American Civil Liberties Union commented on the Supreme Court ruling saying, “We are gratified by today’s ruling that the Fair Sentencing Act applies to all people sentenced after its passage. This decision upholds the Act’s self-proclaimed objective to ‘restore fairness to Federal cocaine sentencing’ and end a legacy of racial discrimination in criminal sentencing. The The Fair Sentencing Act was designed to eliminate racial discrimination, not perpetuate it.”

LAUREN VICTORIA BURKE, Politic365 Managing Editor, publishes the blog Crewof42 on the Congressional Black Caucus.  She can be heard every Tuesday at 4 p.m. ET on WMCS 1290 in Milwaukee on Earl Ingram’s show The Evening Rush as well as on WPFW 89.3 every Friday at 6:30 p.m. and occasionally on WHUR 96.3 in Washington DC. Ms. Burke is a former employee of USA Today, ABC News and Associated Press.  You can e-mail her at LBurke007@gmail.com follow her on twitter at @crewof42.

 



About the Author

Lauren Victoria Burke
Lauren Victoria Burke
Lauren Victoria Burke is a writer, speaker, strategist, comms expert and political analyst. She created Crewof42.com, a blog that covers the work of Black members of Congress, in 2009. She's been a former staffer for the Senate Democratic Policy Committee and Director of Communications for Rep. Andre Carson (D-IN) and has had a very diverse career in politics and media. Ms. Burke appears regularly on NewsOneNow with Roland Martin on TVOne and has been seen on MSNBC. She holds a B.A. in History from The American University. E-mail anytime: LBurke007@gmail.com. Twitter: @Crewof42. Instagram: LVB325. The ideas and opinions expressed in this article are solely those of the author, and have complete editorial independence from any Politic365 partners, sponsors, or advertisers.




 
 

 
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4 Comments


  1. [...] from the Washington Post, the Associated Press (via the Washington Post), the Chicago Sun-Times, Politic365, the Courthouse News Service, the Drug War Chronicle, and the (Columbus) Republic.  At the [...]


  2. scallywagy

    It’s true. Coke is coke, whether you snort it, smoke it or inject it and yet it never made sense why those individuals who got caught selling crack got administered a decidedly harsher penalty than those who sold the powdered version that anyone with street nouse could cook down to freebase cocaine and smoke in a jiffy.

    You don't have to be a genius to appreciate that previous laws were racially inferred and to punish the 'big bad scary black man.'
    http://scallywagandvagabond.com/2012/06/crack-dea


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