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The FSA was a step toward fairness, but the 18:1 ratio was a compromise and it still reflects outdated and discredited assumptions about crack cocaine.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.
Letters & Testimony
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.
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.