TWO STEPS FORWARD, ONE STEP BACK: HOW FEDERAL COURTS TOOK THE “FAIR” OUT OF THE FAIR SENTENCING ACT OF 2010
Sarah Hyser
ABSTRACT
Congress mandates stricter sentences on crack cocaine offenders than on powder cocaine offenders, despite the two substances being chemically identical. Under the Anti-Drug Abuse Act of 1986 (“1986 Act”), first-time possession of a small amount of crack yielded a mandatory minimum sentence of five years in prison. Meanwhile, the same offender found guilty of possessing powder cocaine must possess 100 times that amount to receive the same five-year sentence. This scheme was known as the 100:1 sentencing ratio. The Fair Sentencing Act of 2010 (FSA), signed by President Barack Obama on August 3, 2010, corrects this disparity by reducing—but not eliminating—the ratio between the two categories of drug offenders. Due to vague legislative drafting and crafty judicial decision-making, Congress’s actions nearly failed to have their intended impact. Because the FSA does not contain an express provision repealing the 1986 Act, some courts continued to apply pre-FSA sentences to defendants whose cases were pending when the FSA became law. Because federal drug crimes carry a five-year statute of limitations, the number of affected defendants continued to grow as the window for indicting offenders on pre-FSA conduct remained open. While this window was open, defendants were receiving sentences that Congress explicitly condemned and urgently repealed. This tension resulted in a split among the U.S. Courts of Appeals and a subsequent U.S. Supreme Court decision, Dorsey v. United States, which held that the FSA must be applied in pending cases.
This Comment sets forth the major arguments why, based on the purpose and legislative history of the FSA, the statute must be applied to all defendants sentenced after its passage. Specifically, this Comment examines the background of the 100:1 sentencing ratio and the defunct rationale behind its enactment. It then discusses the reversal of public opinion on the comparative dangerousness of crack cocaine and efforts to reform the sentencing disparity. It details the FSA’s legislative history and reviews both the circuit split among the courts of appeals and the subsequent Supreme Court decision in Dorsey. Finally, this Comment discusses questions left unanswered by the Court and areas of the law needing further reform.
