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The Fair Sentencing Act of 2010 (FSA) is actually only kind of fair. The passage of the 2010 law, which reduced the crack to powder mandatory minimum ratio in federal cocaine sentences from 100:1 to 18:1, was a significant step in the direction of fairness. While we applaud this change, we also look forward to the day when Congress adopts the actually fair ratio of 1:1. In the meantime, the Supreme Court has granted certiorari on two FSA cases, and , both out of the Seventh Circuit. In these cases, the Court will decide whether people whose offense predates the enactment of the FSA but who were sentenced afterwards should be sentenced based on the old 100:1 ratio or the new 18:1 ratio. If the Court rules the wrong way, a sizeable class of people will be excluded from Congress’ attempt to restore fairness and racial neutrality to federal cocaine sentencing, and the kind-of-Fair Sentencing Act will become even less fair.

Congress created the 100:1 sentencing disparity in 1986. It left little legislative history behind, and it acted based on unsupported beliefs that crack is more addictive than powder cocaine, that it caused crime, that it caused psychosis and death, that young people were particularly prone to becoming addicted to it, and that crack’s low cost and ease of manufacture would lead to even more widespread use of it. Congress knows now that none of this is true. Indeed, as early as 1996, a study published by the Journal of the American Medical Association found that the physiological and psychoactive effects of cocaine are similar regardless of whether it is in the form of powder or crack.

The scientifically unjustifiable 100:1 ratio meant that people faced a minimum of five years imprisonment for offenses involving five grams of crack cocaine. Five grams is the weight of two pennies. That’s worth repeating: five grams is the weight of two pennies and resulted in a minimum of five years in federal prison. Most disturbingly, because the majority of people arrested for crack offense are black, the 100:1 ratio resulted in vast racial disparities in the average lengths of sentences for comparable offenses, and even meant that African Americans were serving a comparable amount of time in prison for non-violent drug offenses (as of 2006, an average of 58.7 months) as whites were for violent offenses (an average of 61.7 months). By the time Congress and the president took action to remedy this injustice by reducing the ratio to 18:1, the old ratio had become the most notorious policy representing the unfair treatment of African Americans in our criminal justice system.

Against this backdrop and in light of the FSA’s legislative history, it is clear that Congress intended the new ratio to go into effect immediately upon receiving the president’s signature. On this point, Attorney General Eric Holder agrees with us. This term, we’ll find out if the Supreme Court agrees as well when it rules on Hill and Dorsey.

The passage of the FSA required the United States Sentencing Commission to make emergency amendments to the Federal Sentencing Guidelines within 90 days of the FSA’s enactment, in order to bring the guidelines in line with the newly reduced ratio. Those amendments became effective on November 1, 2010. The cases before the Court differ in that Mr. Hill was sentenced after the FSA went into effect and after the guideline amendments went into effect, while Mr. Dorsey was sentenced after the new law went into effect but before the guideline amendments went into effect. The Seventh Circuit has held that anyone whose conduct predates the FSA must be sentenced according to the 100:1 ratio, even if the sentence is imposed after the date on which Congress and the president officially repudiated the old, and reprehensibly unjust, ratio. On this point, the Seventh Circuit is in conflict with the First and the Third Circuits.

We hope the Court is persuaded by the position that both the federal defenders and the solicitor general are taking: the Fair Sentencing Act applies to all sentencings that take place after August 3, 2010. To conclude otherwise would significantly undermine the fairness of the Fair Sentencing Act and would perpetuate shameful racial disparities in federal cocaine sentencing.

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