Over the past two decades, criminal defense attorneys and civil rights advocates have been pressing for changes to the Federal Sentencing Guidelines as they apply to offenses involving crack cocaine versus powder cocaine. As the law stood, defendants convicted of possession with intent to distribute crack faced sentences as much as 100 times harsher than those convicted of possession with intent to distribute the same effective dose of powder cocaine.

In July 2010, a large, nonpartisan majority in Congress passed new version of the Fair Sentencing Act to reduce the sentencing disparity between crack and powder cocaine offenses. Specifically noting the unfair impact the previous rules had on African Americans and Latinos, Congress called on the federal Sentencing Commission to “restore fairness to federal cocaine sentencing” — and to do so “as soon as practicable.”

The new sentencing rules, often referred to as the “crack amendment,” apply to those convicted after August 3, 2010. So what happens to people who were convicted of possession with intent to distribute crack cocaine before August 3?

Judge Decides Justice Requires Downward Sentencing Departure for Crack Defendant

One defendant in Wisconsin was facing this very problem. He had pled guilty to possession with intent to distribute 50 grams or more of crack cocaine, and his plea agreement was dated August 2 — one day before the crack amendment went into effect. He didn’t sign his guilty plea until August 12, and the papers weren’t entered with the court until August 31.

Under the old sentencing scheme, he would face a mandatory minimum sentence of 10 years in federal prison. In his particular case, the guidelines called for him to receive 130 to 162 months (10.8 to 13-1/2 years) in prison. Under the crack amendment rules, the judge determined, his appropriate sentence was 8 years. However, the judge needed to determine whether he even had the authority to use the crack amendment rules on someone whose offense occurred before they were in place.

The federal judge from Wisconsin decided that he did. He reasoned that “Congress’s overwhelming, non-partisan intent to remedy disparities in sentencing between powder cocaine and crack cocaine establish its intent to apply the FSA’s mandatory minimums to those awaiting sentencing for crack cocaine offenses.”

Summing up his reason for granting the lesser sentence, the federal judge from Wisconsin quoted the remarks of another federal judge, this one from Maryland, who had faced a similar situation:

“As Judge Hornby explained: ‘I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.’

So, too, I.”

Source: Sentencing Order, U.S. v. Cox, 10-CR-85-WMC, U.S. District Court for the Western District of Wisconsin, January 11, 2011