Fair Sentencing Act

In 2010, Congress passed the Fair Sentencing Act (FSA), which reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1. The scientifically unjustifiable 100:1 ratio meant that people faced longer sentences for offenses involving crack cocaine than for offenses involving the same amount of powder cocaine – two forms of the same drug. Most disturbingly, because the majority of people arrested for crack offenses are African American, the 100:1 ratio resulted in vast racial disparities in the average length of sentences for comparable offenses. On average, under the 100:1 regime, African Americans served virtually as much time in prison for non-violent drug offenses as whites did for violent offenses. The FSA represents a decade-long, and truly bipartisan, effort to reduce the racial disparities caused by the draconian crack cocaine sentencing laws and to restore confidence in the criminal justice system — particularly in communities of color.

In another step toward fairness, in 2011, the U.S. Sentencing Commission voted to retroactively apply the new FSA Sentencing Guidelines to individuals sentenced before the law was enacted. This decision will help ensure that over 12,000 people — 85 percent of whom are African-Americans — will have the opportunity to have their sentences for crack cocaine offenses reviewed by a federal judge and possibly reduced. (Even though people sentenced before the FSA can benefit from the retroactive Sentencing Guideline amendments, they remain subject to pre-FSA statutory mandatory minimums). 

Now, the U.S. Supreme Court will decide whether people whose offenses predate the enactment of the FSA but who were sentenced afterwards should get the benefit of the new, fairer 18:1 statutory ratio, or instead be sentenced under the 100:1 ratio that Congress has repudiated

The FSA was a step toward fairness, but the 18:1 ratio was a compromise and it still reflects outdated and discredited assumptions about crack cocaine. Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses – the only truly fair ratio is 1:1.

Blog Posts

ACLU LENS: Supreme Court Rules Fairer Sentences Apply to More Drug Cases>>

Threat to Current Sentencing Law Looms: Are We Headed Back to Mandatory Guidelines?»

Congress Stood Up for Fairer Sentencing. The Supreme Court Should Too.»

Will the Supreme Court Render the Fair Sentencing Act Less Fair?»

The Criminal Justice Year in Review - 2011»

Criminal Justice Reform 2011 – The Good, the Bad, and the Work Ahead»

Chance at Freedom: Retroactive Crack Sentence Reductions For Up to 12,000 May Begin Today»

AG Makes the Right Decision, Eventually»

Justice Is Served»

A Call for Fairness»

Retroactivity — the Path to Fairness»


Woman Serving Unfair Sentence for Non-Violent Crime Applies for Sentence Reduction»

House Introduces Bill Allowing Challenges Of Unfair Crack Cocaine Sentences»

Letters & Testimony

ACLU Statement to Judiciary Subcommittee on the Status of Federal Sentencing and the U.S. Sentencing Commission (2011)

Memorandum from Attorney General Regarding Guidance on Statutory Retroactivity (2011)

ACLU Testimony Before the United States Sentencing Commission Hearing on Retroactivity of the Fair Sentencing Act of 2010 Amendments (2011)

Congressional Black Caucus Letter Regarding Retroactivity of Fair Sentencing Act Amendment (2011)

Coalition Letter to Attorney General Holder Urging Retroactivity of the Fair Sentencing Act» (2011)

Justice Roundtable Letter to the Senate Judiciary Committee in Support for S. 1789, the Fair Sentencing Act of 2009» (2010)

ACLU Letter of Support for the Fair Sentencing Act of 2009» (2009)

ACLU Comments to the U.S. Sentencing Commission Regarding Proposed Amendment to Crack Sentencing Guidelines (2007)

Coalition Letter Urging Meaningful Sentencing Reform» (2005)


Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law (2006): In the 20 years following passage of the Anti-Drug Abuse Act of 2006, many of the myths surrounding crack cocaine were dispelled, making it clear that there was no scientific or penological justification for the 100:1 sentencing ratio.

Legal Documents

Dorsey v. U.S. and Hill v. U.S. - ACLU Amicus Brief (2012): In Hill v. United States and Dorsey v. United States, the U.S. Supreme Court will decide whether people whose offenses predate the enactment of the FSA but who were sentenced afterwards should get the benefit of the new, fairer 18:1 ratio, or instead be sentenced under the old 100:1 ratio. In our brief, we join Hill and Dorsey — as well as the Obama administration — in urging the Court to hold that Congress intended the FSA to apply in all sentencing proceedings that occur after its enactment.

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