New Differential May Not Affect Discrimination in Federal Drug Sentencing

Congress Passes Fair Sentencing Act

This past August, President Obama signed a historic piece of legislation into law, the Fair Sentencing Act of 2010. Under the Act, the 100 to 1 sentencing disparity between crack cocaine and powdered cocaine sentences was reduced to an 18 to 1 ratio.

Previously, possession of five grams of crack cocaine resulted in a mandatory minimum sentence of five years while possession of 50 grams triggered a mandatory minimum 10 year sentence. To receive the same mandatory sentences for possession of powdered cocaine, an individual had to have 500 grams and 5000 grams respectively in his or her possession.

Under the Fair Sentencing Act, it now takes 28 grams of crack cocaine to trigger a five year mandatory minimum sentence and 280 grams of the drug to trigger a 10 year mandatory minimum sentence. The amounts of powdered cocaine necessary to receive five and 10 year mandatory minimum sentences were not changed. The new law also eliminated the mandatory minimum sentence for simple possession of crack cocaine.

The 100 to 1 disparity in sentencing between the two types of cocaine was the result of misguided and uninformed drug policies during the 1980s War on Drugs. At that time, there was a mistaken belief that crack cocaine was much more addictive and dangerous than powdered cocaine and responsible for more crime. The tough sentences under the 1986 drug laws were meant to target high level offenders. However, the laws disproportionately targeted low-level crack dealers who were predominantly black.

As a result of the 1986 drug laws, 80 percent of those prosecuted in federal crack cases have been black and more than one in three of those arrested for federal drug crimes also have been black.

Even though civil rights groups, judges, the US Sentencing Commission and others have been calling for change to US drug sentencing laws for more than 10 years, it was not until this year that meaningful reform finally was pushed through. In the past, Congress feared voting to change the drug sentencing laws because they did not want to appear soft on drugs. This year, however, Congress laid those fears to rest and found bi-partisan support to pass the long overdue changes to cocaine sentencing laws.

Changes May Not Have Desired Effect on Sentencing Disparities

While changing the federal sentencing laws for crack cocaine offenses was a welcome change, it may not be enough to relieve the racial disparity in drug sentencing laws. The problem is that the majority of drug offenses are tried at the state level rather than at the federal level.

In fact, of the 1.7 million drug cases prosecuted each year, only 25,000 of these cases are federal cases. Moreover, it is estimated that blacks are sent to state prisons on drug charges at a rate 10 times that of their white counterparts. Since the change in the federal law has no effect on these cases, the true impact of the new 18:1 sentencing ratio may not be nearly as great as some are anticipating.

The Fair Sentencing Act also has been criticized for not eliminating the disparity completely between crack cocaine and powdered cocaine sentences. While the original bill introduced in the Senate had proposed to make the sentence 1:1, the bill was not going to make it out of the Senate without a compromise on the ratio.

Some members of the Senate believed that the law needed to reflect some research that suggests crack cocaine is a more addictive drug than powdered cocaine and that the crack form of the drug is associated with higher rates of violent crime. To reflect these concerns, the 18:1 ratio became the compromise that was necessary to get the Fair Sentencing Act voted through the Senate.

Another criticism of the Act is that it does not apply retroactively. Those who believe the law should apply retroactively point out the inherent unfairness in giving those sentenced on or after the Act's effective date the new sentence while those who were sentenced even one day before the Act became law are stuck with the old, harsher sentence. They argue that the 100:1 law has been unfair for the nearly 25 years it has been in effect and that those serving sentences under the old law should be given the opportunity to have them reduced under the new guidelines.


Regardless of the shortfalls of the Fair Sentencing Act, it still represents a move in the right direction for US drug sentencing policy. Hopefully, state legislatures will be more open to passing similar reforms that will have the ability to impact racial disparity in sentencing on a larger scale than the federal law alone will be ever be able to.

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North Carolina vs. M.W.
Charge: Charge: Robbery with A Dangerous Weapon (4 Counts), First Degree Burglary, Conspiracy to Commit Robbery with A Dangerous Weapon
Facing: 12 - 17 years in prison
Result: Dismissed

An incarcerated defendant accused our client of participating in the robbery of a group of youth at a party. We were able to raise doubt as to the credibility of this individual. In the end, the prosecutor dismissed these charges, citing a lack of evidence.