Fair Sentencing Act
Encyclopedia
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
signed into law by U.S. President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
on August 3, 2010. Similar bills were introduced in several U.S. Congresses before its passage in 2010. The law reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger certain United States 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
Crack cocaine
Crack cocaine is the freebase form of cocaine that can be smoked. It may also be termed rock, hard, iron, cavvy, base, or just crack; it is the most addictive form of cocaine. Crack rocks offer a short but intense high to smokers...
, among other provisions. Courts had also acted to reduce the sentencing disparity prior to the bill's passage.
The Anti-Drug Abuse Act of 1986 implemented the initial disparity, reflecting Congress's view that crack cocaine was a more dangerous and harmful drug than powder cocaine
Cocaine
Cocaine is a crystalline tropane alkaloid that is obtained from the leaves of the coca plant. The name comes from "coca" in addition to the alkaloid suffix -ine, forming cocaine. It is a stimulant of the central nervous system, an appetite suppressant, and a topical anesthetic...
. In the decades since, extensive research by the United States Sentencing Commission
United States Sentencing Commission
The United States Sentencing Commission is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts...
and other experts has suggested that the differences between the effects of the two drugs is exaggerated and that the sentencing disparity is unwarranted. Additional controversy surrounding the 100:1 ratio was a result of its description by some as being racially biased and contributing to a disproportionate number of African Americans being sentenced for crack cocaine offenses. Legislation to reduce the disparity had been introduced since the mid-1990s, culminating in the signing of the Fair Sentencing Act.
The Act has been described as improving the fairness of the justice system in the United States, and prominent politicians and non-profit organizations have called for further reforms. These include making the law retroactive and a complete elimination of the disparity with a 1:1 sentencing ratio.
Background
The use of crack cocaineCrack cocaine
Crack cocaine is the freebase form of cocaine that can be smoked. It may also be termed rock, hard, iron, cavvy, base, or just crack; it is the most addictive form of cocaine. Crack rocks offer a short but intense high to smokers...
increased rapidly in the 1980s, accompanied by an increase in violence in urban areas. In response, the Anti-Drug Abuse Act of 1986 included a provision that created the disparity between federal penalties for crack cocaine and powder cocaine offenses penalizing the possession of an amount of crack 100 times smaller than the amount of cocaine that would lead to a penalty for possession of powder cocaine. The law also contained minimum sentences and other disparities between the two forms of the drug.
Sentencing disparity and effects
In the three decades prior to the passing of the Fair Sentencing Act, those who were arrested for possessing crack cocaineCrack cocaine
Crack cocaine is the freebase form of cocaine that can be smoked. It may also be termed rock, hard, iron, cavvy, base, or just crack; it is the most addictive form of cocaine. Crack rocks offer a short but intense high to smokers...
faced much more severe penalties than those in possession of powder cocaine. While a person found with five grams of crack cocaine faced a five-year mandatory minimum prison sentence, a person holding powder cocaine could receive the same sentence only if he or she held five hundred grams. Similarly, those carrying ten grams of crack cocaine faced a ten-year mandatory sentence, while possession of one thousand grams of powder cocaine was required for the same sentence to be imposed.
At that time, Congress provided the following five reasons for the high ratio: crack cocaine was more addictive than powder cocaine; crack cocaine was associated with violent crime; youth were more likely to be drawn to crack cocaine; crack cocaine was inexpensive, and therefore more likely to be consumed in large quantities; and use of crack cocaine by pregnant mothers was dangerous for their unborn children.
A study released in 1997 examined the addictive nature of both crack and powder cocaine and concluded that one was no more addictive than the other. The study explored other reasons why crack is viewed as more addictive and theorized, "a more accurate interpretation of existing evidence is that already abuse-prone cocaine users are most likely to move toward a more efficient mode of ingestion as they escalate their use. The Los Angeles Times
Los Angeles Times
The Los Angeles Times is a daily newspaper published in Los Angeles, California, since 1881. It was the second-largest metropolitan newspaper in circulation in the United States in 2008 and the fourth most widely distributed newspaper in the country....
commented, "There was never any scientific basis for the disparity, just panic as the crack epidemic swept the nation's cities."
In 2002, the United States Sentencing Commission
United States Sentencing Commission
The United States Sentencing Commission is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts...
"found that the ratio was created based upon a misperception of the dangers of crack cocaine, which had since been proven to have a less drastic effect than previously thought." In 2009, the U.S. Sentencing Commission introduced figures stating that no class of drug is as racially skewed as crack in terms of numbers of offenses. According to the data, 79% of 5,669 sentenced crack offenders were black, while only 10% were white and 10% were Hispanic. The figures for the 6,020 powder cocaine convictions, in contrast, were as follows: 17% of these offenders were white, 28% were black, and 53% were Hispanic. Combined with a 115-month average imprisonment for crack offenses, compared with an average of 87 months for cocaine offenses, the sentencing disparity results in more African-Americans spending more time in the prison system.
Asa Hutchinson
Asa Hutchinson
William Asa Hutchinson is a former U.S. Attorney for the Fort Smith-based Western District of Arkansas, U.S. Congressman from the Third District of Arkansas, Administrator of the U.S. Drug Enforcement Administration and the first-ever Under Secretary for Border & Transportation Security at the U.S...
, the former Administrator of the Drug Enforcement Agency under President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
, commented that because of the disparate treatment of these two offenses, "the credibility of our entire drug enforcement system is weakened." The United States Sentencing Commission
United States Sentencing Commission
The United States Sentencing Commission is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts...
also released a statement saying that "perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system." According to U.S. Senator Dick Durbin, "The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarcerations."
Legal challenges
Although the 100:1 federal sentencing ratio remained unchanged from 1986 to 2010, two U.S. Supreme Court cases provided lower courts with discretion in determining penalties for cocaine sentences. Kimbrough v. United StatesKimbrough v. United States
In Kimbrough v. United States, 552 U.S. 85 , the Supreme Court confirmed that federal district judges have discretion to impose sentences outside the range dictated by the Federal Sentencing Guidelines in cases involving conduct related to possession, distribution, and manufacture of crack...
(2007) and Spears v. United States gave lower courts the option to set penalties and allowed judges who disagreed with the Sentencing Guidelines to depart from the statutory ratio based on policy concerns. In 2009, the U.S. District Courts for the Western District of Pennsylvania, Western District of Virginia and District of Columbia used these cases to create one-to-one sentencing ratios of crack cocaine to powder cocaine. United States v. Booker
United States v. Booker
United States v. Booker, , was a United States Supreme Court decision concerning criminal sentencing. The Court ruled that the Sixth Amendment right to jury trial requires that, other than a prior conviction, only facts admitted by a defendant or proved beyond a reasonable doubt to a jury may be...
(2005) and Blakely v. Washington
Blakely v. Washington
Blakely v. Washington, 542 U.S. 296 , held that, in the context of mandatory sentencing guidelines under state law, the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant...
(2004) also weakened the Sentencing Guidelines as a whole by making them advisory.
Proposed legislation
The U.S. Sentencing Commission first called for reform of the 100:1 sentencing disparity in 1994 after a year-long study on the differing penalties for powder and crack cocaine required by the Omnibus Violent Crime Control and Law Enforcement ActViolent Crime Control and Law Enforcement Act
The Violent Crime Control and Law Enforcement Act, , , was an act of Congress dealing with crime and law enforcement that became law in 1994. It is the largest crime bill in the history of the US at 356 pages and will provide for 100,000 new police officers, $9.7 billion in funding for prisons and...
. The Commission found that the sentencing disparity was unjustified due to the small differences between the two forms of cocaine, and advised Congress to equalize the quantity ratio that would trigger mandatory sentences. Congress rejected the Commission's recommendations for the first time in the Commission's history.
In April 1997, the Commission again recommended a reduction in the disparity, providing Congress with a range from 2:1 to 15:1 to choose from. This recommendation would have raised the quantity of crack and lowered the quantity of powder cocaine required to trigger a mandatory minimum sentence. Congress did not act on this recommendation. In 2002, the Commission again called for reducing sentencing disparities in its Report to Congress based on extensive research and testimony by medical and scientific professionals, federal and local law enforcement officials, criminal justice practitioners, academics, and civil rights organizations.
Congress first proposed bipartisan legislation to reform crack cocaine sentencing in 2001, when Senator Jeff Sessions
Jeff Sessions
Jefferson Beauregard "Jeff" Sessions III is the junior United States Senator from Alabama. First elected in 1996, Sessions is a member of the Republican Party...
(R-AL) introduced the Drug Sentencing Reform Act. This proposal would have raised the amount of crack cocaine necessary for a five-year mandatory minimum from 5 grams to 20 grams and would have lowered the amount of powder cocaine necessary for the same sentence from 500 grams to 400 grams, a 20:1 ratio. During the 110th United States Congress
110th United States Congress
The One Hundred Tenth United States Congress was the meeting of the legislative branch of the United States federal government, between January 3, 2007, and January 3, 2009, during the last two years of the second term of President George W. Bush. It was composed of the Senate and the House of...
, seven crack cocaine sentencing reform bills were introduced that would have reduced the sentencing disparity between crack and powder cocaine offenses without increasing mandatory sentences.
In the Senate, Orrin Hatch
Orrin Hatch
Orrin Grant Hatch is the senior United States Senator for Utah and is a member of the Republican Party. Hatch served as the chairman or ranking member of the Senate Judiciary Committee from 1993 to 2005...
(R-UT) sponsored the Fairness in Drug Sentencing Act of 2007 (S. 1685) that would have created a 20:1 ratio by increasing the five-year quantity trigger for mandatory minimum sentences for crack cocaine to 25 grams and leaving the powder cocaine level at 500 grams. Former senator and current Vice President of the United States
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
Joe Biden
Joe Biden
Joseph Robinette "Joe" Biden, Jr. is the 47th and current Vice President of the United States, serving under President Barack Obama...
sponsored the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (S. 1711), which would have completely eliminated the disparity by increasing the amount of crack cocaine required for the imposition of mandatory minimum prison terms to those of powder cocaine.
Both of these bills would have eliminated the five-year mandatory minimum prison term for first-time possession of crack cocaine. In the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, Sheila Jackson Lee
Sheila Jackson Lee
Sheila Jackson Lee is the U.S. Representative for , serving since 1995. The district includes most of inner-city Houston. She is a member of the Democratic Party.-Early life and education:...
(D-TX) sponsored the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (H.R. 4545), the companion to Biden's proposed bill. Charles Rangel
Charles B. Rangel
Charles Bernard "Charlie" Rangel is the U.S. Representative for , serving since 1971. A member of the Democratic Party, he is the third-longest currently serving member of the House of Representatives. As its most senior member, he is also the Dean of New York's congressional delegation...
sponsored the Crack-Cocaine Equitable Sentencing Act of 2007 (H.R. 460), a bill he had been introducing since the mid-1990s that would have equalized cocaine sentencing and eliminated specified mandatory minimum penalties relating to the trafficking in, and possession, importation, or distribution of, crack cocaine.
Opposition to the Act
Some members of Congress opposed the Act. Lamar S. SmithLamar S. Smith
Lamar Seeligson Smith is the U.S. Representative for , serving since 1987. The district includes most of the wealthier sections of San Antonio and Austin, as well as nearly all of the Texas Hill Country...
(R-TX), the top-ranking Republican on the United States House Committee on the Judiciary
United States House Committee on the Judiciary
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement...
, argued against its passage stating, "I cannot support legislation that might enable the violent and devastating crack cocaine epidemic of the past to become a clear and present danger." Specifically, Smith alleged that because "reducing the penalties for crack cocaine could expose our neighborhoods to the same violence and addiction that caused Congress to act in the first place," the bill risked a return to the crack cocaine epidemic that "ravaged our communities, especially minority communities." Smith claimed that the severe sentences for crack cocaine were justified by a high correlation between crack cocaine arrests and both violent crime and past criminal history.
The Fraternal Order of Police, a national organization of law enforcement officers, also opposed the Act. It argued that because increased violence is associated with the use of crack, especially in urban areas, high penalties for crack-related offenses were justified, relying on U.S. Sentencing Commission statistics showing that 29% of all crack cases from October 1, 2008, through September 30, 2009, involved a weapon, compared to only 16% for powder cocaine. The organization also stated that the enhanced penalties for crack cocaine "have proven useful, and a better course of action would have been to instead raise the penalties for powder cocaine crimes." The Fair Sentencing Act includes a provision to account for such aggravated cases, allowing penalties to be increased for the use of violence during a drug trafficking offense.
The National Sheriff's Association (NSA) opposed the bill, stating that "Both crack and powder cocaine are dangerous narcotics and plights on communities throughout the United States. ... NSA would consider supporting legislation that would increase the sentence for powder cocaine, rather than significantly reducing the sentence for crack cocaine."
Proposal and passage of the bill
On July 29, 2009, the United States House Committee on the JudiciaryUnited States House Committee on the Judiciary
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement...
passed proposed legislation, the Fairness in Cocaine Sentencing Act (H.R.3245), a bill sponsored by Bobby Scott. Co-sponsored by a group of 62 members of the U.S. House of Representatives, including Dennis Kucinich
Dennis Kucinich
Dennis John Kucinich is the U.S. Representative for , serving since 1997. He was furthermore a candidate for the Democratic nomination for President of the United States in the 2004 and 2008 presidential elections....
and Ron Paul
Ron Paul
Ronald Ernest "Ron" Paul is an American physician, author and United States Congressman who is seeking to be the Republican Party candidate in the 2012 presidential election. Paul represents Texas's 14th congressional district, which covers an area south and southwest of Houston that includes...
, the bill would have completely eliminated the sentencing disparity. The Fair Sentencing Act was introduced as compromise legislation to get bipartisan and unanimous support, amended to merely reduce the 100:1 disparity to 18:1.
The Fair Sentencing Act (S. 1789) was authored by Assistant Senate Majority Leader Dick Durbin (D-IL) and cosponsored by Judiciary Committee
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
Chairman Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
(D-VT) and ranking member
Ranking member
In United States politics, a ranking member is the second-most senior member of a congressional or state legislative committee from the majority party. Another usage refers to the most senior member of a congressional or state legislative committee from the minority party. This second usage, often...
Jeff Sessions
Jeff Sessions
Jefferson Beauregard "Jeff" Sessions III is the junior United States Senator from Alabama. First elected in 1996, Sessions is a member of the Republican Party...
(R-AL). The bill passed the U.S. Senate on March 17, 2010 and passed the U.S. House of Representatives on July 27, 2010, with House Majority Whip James E. Clyburn (D-SC) and Bobby Scott (D-VA) as key supporters. The bill was then sent to President Obama and signed into law on August 3, 2010.
Key provisions
The Fair Sentencing Act of 2010 amended the Controlled Substances ActControlled Substances Act
The Controlled Substances Act was enacted into law by the Congress of the United States as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The CSA is the federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain...
and the Controlled Substances Import and Export Act by increasing the amount of a controlled substance or mixture containing a cocaine base (i.e., crack cocaine) that would result in mandatory minimum prison terms for trafficking and by increasing monetary penalties for drug trafficking and for importing/exporting controlled substances. The five-year mandatory minimum for first-time possession of crack cocaine was also eliminated, and sentencing may take account of accompanying violence, among other aggravating factors.
The bill directed the United States Sentencing Commission
United States Sentencing Commission
The United States Sentencing Commission is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts...
to take four actions:
- review and amend its sentencing guidelines to increase sentences for those convicted of committing violent acts in the course a drug trafficking offense;
- incorporate aggravating and mitigating factors in its guidelines for drug trafficking offenses;
- announce all guidelines, policy statements, and amendments required by the act no later than 90 days after its enactment; and
- study and report to Congress on the impact of changes in sentencing law under this act.
In addition, the bill requires the Comptroller General
Comptroller General of the United States
The Comptroller General of the United States is the director of the Government Accountability Office , a legislative branch agency established by Congress in 1921 to ensure the fiscal and managerial accountability of the federal government...
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
Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 was legislation passed by the Congress of the United States that established the Law Enforcement Assistance Administration . Title III of the Act set rules for obtaining wiretap orders in the United States. It has been started shortly after...
. This must be done within one year after the enactment of the Fair Sentencing Act.
Impact and reception
The Congressional Budget OfficeCongressional Budget Office
The Congressional Budget Office is a federal agency within the legislative branch of the United States government that provides economic data to Congress....
has estimated that implementing the Fair Sentencing Act of 2010 will reduce the prison population by 1,550 person-years over the time period from 2011–2015, creating a monetary savings of $42 million during that period. The CBO also estimates that the Act's requirement for the Government Accountability Office
Government Accountability Office
The Government Accountability Office is the audit, evaluation, and investigative arm of the United States Congress. It is located in the legislative branch of the United States government.-History:...
to conduct a report on the effectiveness of a Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
grant program to treat nonviolent drug offenders would cost less than $500,000 from appropriated funds.
On October 15, 2010, the U.S. Sentencing Commission voted 6-1 to approve a temporary amendment to federal sentencing guidelines to reflect the changes made by the Fair Sentencing Act. The Commission changed the sentencing guidelines to reflect Congress's increasing the amount of crack cocaine that would trigger a five-year mandatory minimum sentence from 5 grams to 28 grams (one ounce) and the amount that would trigger a ten-year mandatory minimum from 50 grams to 280 grams. The amendment also lists aggravating factors to the guidelines, creating harsher sentences for crack cocaine offenses involving violence or bribery of law enforcement officials. The Commission made the amendment permanent on June 30, 2011.
Effective November 1, 2011, the Fair Sentencing Act of 2010 applies retroactively to reduce the sentences of certain offenders already sentenced for federal crack cocaine offenses before the passage of the bill. (See: http://www.drugpolicy.org/news/2011/06/us-sentencing-commission-votes-make-crackpowder-cocaine-sentencing-reforms-retroactive.) However, the nonprofit organization Families Against Mandatory Minimums
Families Against Mandatory Minimums
Families Against Mandatory Minimums is a USA nonprofit organization founded in 1991 to challenge what they believe to be the inflexible and excessive penalties required by mandatory sentencing laws...
, a major advocate of the Fair Sentencing Act, has lobbied Congress to make the entire act retroactive. According to Gil Kerlikowske
Gil Kerlikowske
Richard Gil Kerlikowske is the current Director of the Office of National Drug Control Policy, a position generally referred to as the United States "Drug Czar". He assumed office on May 7, 2009....
, Director of the Office of National Drug Control Policy
Office of National Drug Control Policy
The White House Office of National Drug Control Policy , a former cabinet level component of the Executive Office of the President of the United States, was established in 1989 by the Anti-Drug Abuse Act of 1988...
, "there is no scientific basis for the disparity and by promoting laws and policies that treat all Americans equally, and by working to amend or end those that do not, we can only increase public confidence in the criminal justice system and help create a safer and healthier nation for us all."
Progressives argue for elimination of the sentencing disparity altogether and believe that the impact of the on racial disparities in drug enforcement may be limited for several reasons. First, while the bill reduces the ratio between crack and powder cocaine sentencing, it does not achieve full parity. Second, the Act does not address the enforcement prerogatives of federal criminal justice agencies: while African-American defendants account for roughly 80% of those arrested for crack-related offenses, public health data has found that two-thirds of crack cocaine users are white or Hispanic. Third, the Act does not reduce sentences for those prosecuted under state law, and state prosecutions account for a vast majority of incarcerations for drug-related offenses.