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

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.

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