FAIR SENTENCING ACT OF 2010
The continued criminalization of drugs remains a controversial issue in this nation. When a defendant is convicted of a drug offense, a sentencing table establishes the appropriate sentencing guidelines based on the defendant’s particular criminal history (Parks 2012, pp. 1110-1111). To respond to allegations of unfairness in sentencing, President Obama signed the Fair Sentencing Act of 2010 into law in August of 2010 (Fair Sentencing Act of 2010). Senator Richard Durbin (D-IL) first introduced the bill in October 2009 (Caldwell 2011 p. 26).
The fair Sentencing Act of 2010 made a number of significant changes to federal sentencing guidelines. The Fair Sentencing Act brought about was to eliminate the five-year mandatory minimum sentence that was required under previous law for a conviction for possession of five or more grams of crack cocaine (Graham 2011, p. 765). Arguably the most important change was to reduce the crack-to-powder cocaine disparity to a ratio of 18:1 (Graham 2011 p. 766). Before such change was implemented, the ratio was 100 grams to 1 (Caldwell 2011 p. 26). The law was passed in an attempt to reduce the disparity between the amounts of crack cocaine and power cocaine to trigger the mandatory minimum sentences (Graham 2011, p. 766).
The political landscape leading up to the passage of the Fair Sentencing Act of 2010 sheds light on the problem that Congress was trying to address. An underlying theme of the criminal justice system is that it disproportionately affects racial minorities. The “War on Drugs” imposes harsher and longer sentences for drug-related offenses. These anti-drug policies have led to a disproportionate number of African Americans being incarcerated for drug offenses (Weatherspoon 2007, p. 605). Under sentencing guidelines predating the Fair Sentencing Act of 2010, African Americans would receive longer and harsher penalties for possession and sale of crack cocaine than similarly situated drug offenders who were Caucasian (Weatherspoon 2007 p. 607).
The drastic differences in sentencing between crack cocaine and power cocaine reflected underscored the racial bias in the sentencing guidelines. Crack cocaine was widely available to African Americans living in poor black communities (Caldwell 2011, p. 22). Because crack cocaine can be produced cheaply, poor individuals are the predominant users of crack cocaine. On the other hand, powder cocaine is the most expensive form of cocaine and is typically used by wealthy, Caucasian users (Caldwell 2011, p. 22).
Before the successful passage of the Fair Sentencing Act of 2010, there were numerous Congressional attempts to reduce the drastic ratio disparity between crack and powder cocaine (Graham 2011, p. 767). Bills that would have implemented such change were introduced in Congress in 1993, 1995, 1996, 1997, 1998, 1999, 2001, 2002, 2003, 2005, 2006, 2007, 2008, and 2009, but all of these proposed bills ultimately failed (Graham 2011, p. 767). While the Fair Sentencing Act was successful in reducing the crack-to-powder ratio from 100:1 to 18:1, some members of Congress wanted to take this idea one step further and treat crack and powder cocaine exactly the same for federal sentencing purposes (Graham 2011, p. 767).
The overarching purpose of the Fair Sentencing Act of 2010 was to eliminate the differential treatment in sentencing between crack and powder cocaine. There are clear racial undertones at play in treating crack and powder cocaine differently for punitive purposes. Whereas crack cocaine is used mostly by African Americans in poor communities, powder cocaine is used by more affluent, typically Caucasian individuals. Although crack and powder cocaine are each a form of the drug, the powder cocaine is much more expensive to produce. The Fair Sentencing Act therefore attempts to eliminate the unfair sentencing discrepancies that existed between crack and powder cocaine.
References
Caldwell, M.K. (2011). Trafficking from the streets to the borders: Why the search for justice
under the fair sentencing act of 2010 stopped on a dead-end street in the black
community. Southern Region Black Law Students Association Law Journal, 19-37.
Fair Sentencing Act of 2010, Pub. L. 111-220 (2010).
Graham, K. (2011). Sorry seems to be the hardest word: The fair sentencing act of 2010, crack,
and methamphetamine. University of Richmond Law Review, 765-799.
Parks, T.B. (2012). The unfairness of the fair sentencing act of 2010. University of Memphis Law
Review, 1105-1136.
Weatherspoon, F.D. (2007). The mass incarceration of African-American males: A return to
institutionalized slavery, oppression, and disenfranchisement of constitutional rights.
Texas Wesleyan Law Review, 599-616.
