In 2010, the U.S. Congress passed historic, bipartisan legislation repealing a mandatory minimum sentence for the first time since the Nixon Administration and reforming the infamous 100-to-one ratio between powder cocaine and crack cocaine. FAMM supported that reform, the Fair Sentencing Act (FSA). Prior to the enactment of the FSA, it took 100 times as much crack cocaine as powder cocaine to receive the same five-, 10-, or 20-year mandatory minimum prison term. The FSA changed this so-called “100-to-one” disparity to a disparity of 18-to-one. The law also abolished a five-year mandatory minimum sentence for simple possession of crack cocaine. The law produces fairer sentences for approximately 3,000 federal crack offenders each year.
In response to the reform, the U.S. Sentencing Commission altered the crack cocaine sentencing guidelines to reflect the new 18-to-one ratio, and it made these guideline changes retroactive. More than 7,700 federal prisoners received sentence reductions based on the retroactive changes to the crack guidelines. The U.S. Sentencing Commission also reduced crack sentences for some offenders in 2007. A recent study found that those who received retroactive crack sentence reductions reoffended at slightly lower rates than crack offenders who served longer sentences. This shows that making crack sentencing reforms retroactive does not increase crime or endanger the public.
The Problem: The FSA was a compromise measure that did not correct all the injustices of the crack-powder disparity. The FSA’s alterations to crack mandatory minimum sentences were not made retroactive – something only Congress can do, by passing legislation. This has left thousands of federal crack cocaine offenders in prison today serving mandatory minimum terms that Congress, the President, and the country have now repudiated as unfair and racially discriminatory. Additionally, the FSA’s 18-to-one ratio does not reflect the fact that crack and powder cocaine are the same drug in different forms, and that crack cocaine crimes are still punished more harshly than powder cocaine offenses.
There have been numerous efforts in Congress to make the Fair Sentencing Act retroactive and to eliminate the 18-to-1 disparity. The Smarter Sentencing Act (S. 353/H.R. 920), if passed, would make the Fair Sentencing Act retroactively applicable to more than 8,800 prisoners, saving taxpayers hundreds of millions of dollars. Two other House bills introduced by Rep. Bobby Scott (D-VA) would, if passed, make the FSA retroactive and eliminate any disparity in sentencing for crack and powder cocaine offenses. FAMM supports these reforms and hopes that they will be passed in Congress.
Pending Bills in the 114th Congress:
H.R. 1252, Fair Sentencing Clarification Act — Introduced by Rep. Bobby Scott (D-VA), this bill, if passed, would make the Fair Sentencing Act of 2010 retroactively applicable to federal prisoners serving mandatory minimum crack sentences they received before August 3, 2010.
H.R. 1255, Fairness in Cocaine Sentencing Act — Introduced by Rep. Bobby Scott (D-VA), this bill, if passed, would eliminate the 18-to-1 differential between crack and powder mandatory minimum sentences and establish a one-to-one ratio. This would essentially mean that crack and powder cocaine mandatory minimum sentences would be triggered by the same quantities of either drug.
FAMM supports these bills. These bills are not law. We do not know if or when they will become law. To become a law, a bill must be passed by both houses of Congress and signed by the President. Every year, thousands of bills are introduced in Congress, but very few become law.
Keep checking back here for updates as bills progress through the legislative process and as more bills are introduced.