Supreme Court Allows Lower Courts to Apply Fair Sentencing Act “Retroactively” in Crack Cocaine Cases

On Thursday, June 21, 2012, the Supreme Court ruled that those who committed a crack cocaine offense prior to August 3, 2010, but were not sentenced until after, are eligible for the more lenient sentences outlined in the Fair Sentencing Act of 2010 (Public Law 111-220).  In a 5-4 decision in the consolidated cases of Dorsey v. United States and Hill v. United States, the Court ruled that judges now have the option of levying lower sentences against those convicted of crack cocaine offenses.  The question going forward is, how will the Fair Sentencing Act and the Court’s ruling affect the landscape of sentences?

President Obama signed the Fair Sentencing Act into law on August 3, 2010.  This law was drafted in response to the continued scrutiny stemming from what some deemed to be severe and unjust discrepancies in how courts sentenced those convicted of crack cocaine offenses versus those convicted of powder cocaine offenses.  The Anti-Drug Abuse Act of 1986 created a 100-to-1 ratio in possible penalties between crack cocaine and powder cocaine offenses.  This meant that a person was subject to a mandatory minimum prison sentence of five years for distributing five grams of crack cocaine compared to five hundred grams of powder cocaine that was required for the same five-year mandatory minimum prison sentence.  Additionally, a conviction for possession with intent to distribute fifty grams of crack cocaine triggered a mandatory minimum sentence of ten years compared to the five thousand grams of powder cocaine required for the ten-year minimum sentence. 

For many critics, this discrepancy raised concerns that the Anti-Drug Abuse Act was targeting black offenders.  Critics of the 1986 Act cited to studies showing that black offenders were more commonly convicted of crack cocaine offenses compared to white offenders who were more commonly convicted of powdered cocaine crimes.  Eventually, senior government officials, as well as the United States Sentencing Commission, found that the 100-to-1 ratio was based upon a misperception of the dangers of crack cocaine and consequently created a racial imbalance within the federal prison system.

Under the Fair Sentencing Act, the disparity has been reduced from 100-to-1 to 18-to-1.  This means that under the 2010 Act, the five-year mandatory minimum prison sentence is not triggered unless the defendant is convicted of possessing with the intent to distribute twenty-eight grams of crack cocaine or five hundred grams of powdered cocaine.  The ten-year mandatory minimum would not be implicated unless the defendant is found to have 280 grams of crack cocaine or 5,000 grams of powder cocaine.  In addition, the 2010 Act eliminated the five-year mandatory minimum for first-time possession of crack cocaine.

In the two cases addressed by the Supreme Court, both Dorsey and Hill were initially sentenced under the 100-to-1 ratio and the guidelines provided under the 1986 Act.  However, the Court reasoned that although Dorsey and Hill’s offenses pre-dated the 2010 Act, their actual sentencing did not take place until after the 2010 Act was signed into law, and therefore, they should have been sentenced using the guidelines provided in the 2010 Act.  With the Court’s ruling, those who committed offenses before the enactment of the 2010 Act but who were sentenced after should be sentenced under the 18-to-1 ratio and the more lenient sentencing guidelines.  Now, any defendant awaiting sentencing after the law’s enactment is entitled to the advantages of the 18-to-1 ratio and other provisions provided in the 2010 Act regardless of when they actually committed their crimes.

In June 2011, the United States Sentencing Commission voted to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the 2010 Act.  While not every federal crack cocaine offender is eligible for a sentence reduction, the Sentencing Commission estimated that 12,000 offenders would be eligible for possible sentence reductions.  However, the Sentencing Commission acknowledged that the 2010 Act is not automatically retroactive as only Congress can make that decision.  While the Court’s decision in Dorsey and Hill applies the 2010 Act retroactively to a specific class of offenders, there is still not blanket retroactivity.

Aside from the legal and sociological affects of the 2010 Act, there is an economic component to be considered as well.  The Congressional Budget Office estimated in a 2010 report that the passage of the 2010 Act would reduce spending in the federal prison system by $42 million between 2011 and 2015.  In addition, the Bureau of Prisons estimated that the 2010 Act could result in savings of over $200 million within five years of retroactivity.  In an age where many states are trying to reduce their prison populations, the possible economic incentives of the 2010 Act cannot be ignored.

Jason Navia                 

Senior Blog Editor, Criminal Law Brief

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