Should sentencing reforms for crack cocaine be retroactive?

Prior to the Fair Sentencing Act of 2010, sentencing guidelines for distribution of crack cocaine were much more severe than the sentences for selling powder cocaine. A suspect would have to sell about 100 times as much powder cocaine as crack cocaine to get the same sentence.

The Fair Sentencing Act of 2010 greatly reduced this disparity. The new sentencing clearly applies to those who committed crimes after the law became effective last year. But it is not yet clear how the law should be applied to those who committed the crime prior to the enactment of the law, but were not sentenced until after it took effect. The U.S. Supreme Court is now poised to review a case on this issue.

In the case of Hill v. United States, a suspect was convicted in 2009 of selling more than 50 grams of crack cocaine. The alleged offense took place in 2007, prior to the August 2010 enactment of the new law. But the suspect was not sentenced until December of 2010, after the new law was effective.

Under the old law, in effect at the time of his offense, the mandatory minimum sentence would be ten years. Under the new law, the mandatory minimum would be only five years. The trial court used the old sentencing guidelines to hand down the longer sentence.

On appeal, the government prosecutors argued that the court should apply the sentencing guidelines as they existed at the time of the offense. The appeals court affirmed the longer sentence. The suspect next appealed to the U.S. Supreme Court. Two weeks after seeking review, the Justice Department sent a memo to all federal prosecutors explaining that the government’s position had changed. They now agree with this suspect that any sentencing after the enactment of the law should utilize the new guidelines, regardless of when the offense occurred.

We will, of course, continue to monitor this case closely. In our next installment of this series we will look more closely at another case to see how the court viewed a downward departure from the old sentencing guidelines in light of the new guidelines.

Source: New York Times, “Justices to Decide on Fairness in Drug Sentences,” Adam Liptak, Nov. 28, 2011