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

Emma Andersson,
Deputy Director, Criminal Law Reform Project
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January 30, 2012

Today we filed a friend-of-the-court brief in two Supreme Court cases that deal with the Fair Sentencing Act of 2010 (FSA), which reduced the disparity between federal mandatory minimum sentences for crack versus powder cocaine from 100:1 to 18:1. As we’ve written before, this was a significant step in the direction of fairness.

In Hill v. United States and Dorsey v. United States, the 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 (the fairest ratio would be 1:1), or instead be sentenced under the old 100:1 ratio, which had no basis in science and resulted in racially biased sentencing. 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.

The FSA was passed to correct the problems with the Anti-Drug Abuse Act of 1986, which created a sentencing scheme that unequally punished comparable offenses involving crack and powder cocaine — two forms of the same drug. Relying on perceived differences in the harmfulness and dangerousness of crack versus powder cocaine amid media hysteria surrounding crack cocaine, the 1986 law created a 100:1 disparity between the amounts of crack versus powder cocaine necessary to trigger particular sentences. Thus, for example, someone convicted of an offense involving just five grams of crack cocaine was subject to the same five-year mandatory minimum federal prison sentence as someone convicted of an offense involving 500 grams of powder cocaine. But empirical evidence has demonstrated that there is no scientific basis to support the supposed differences between crack and powder cocaine which Congress had relied upon in devising the 100:1 ratio.

Moreover, the ratio, coupled with government enforcement priorities, gave rise to a racially discriminatory sentencing scheme. The scheme has been part of a War on Drugs that has become a key contributor to our nation’s staggering rise in incarceration rates, leading to the disproportionate incarceration of black men and filling our prisons with nonviolent drug offenders.

In our brief we argue that denying people like Hill and Dorsey the benefit of the FSA’s less discriminatory ratio would undermine the Act’s self-proclaimed objective “[t]o restore fairness to Federal cocaine sentencing.” Congress’s pressing concerns with racial equality and fairness in sentencing are just as relevant to conduct committed prior to the passage of the FSA as to conduct committed afterwards, and it would be inconsistent with Congress’s goal of ending the legacy of inequitable cocaine sentencing for the Court to allow the defunct and flawed 100:1 ratio to govern any sentence imposed after the FSA’s enactment.

The FSA’s historical context, text and legislative history make clear that Congress intended the new ratio to go into effect immediately upon receiving the president’s signature. We hope the Court agrees. To conclude otherwise would perpetuate shameful racial disparities in federal cocaine sentencing.

We are joined on the brief by the ACLU of Illinois, the Leadership Conference on Civil and Human Rights, the National Association of the Advancement of Colored People, the Sentencing Project, Families Against Mandatory Minimums, Open Society Institute, the Drug Policy Alliance and

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