By Christopher Zoukis
In August 2010, Congress passed, and President Obama signed, the Fair Sentencing Act (FSA), which reduced, but did not eliminate, the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimums in federal sentencing law. Before the new law took effect, the threshold for a mandatory minimum five-year sentence was a mere 5 grams for crack cocaine, but 500 grams for powder cocaine. Similarly, a 10-year sentence for possessing or dealing crack cocaine was mandated for as little as 10 grams, but didn’t apply to powder cocaine until the amount reached 1,000 grams.
By raising the threshold for a mandatory 5-year sentence for crack possession from 5 to 28 grams, and from 50 to 280 grams for the 10-year mandatory minimum, the FSA trimmed the sentencing disparity from 100:1 to 18:1. The 100:1 disparity had originally come into federal law about 30 years earlier, when President Clinton signed into law the Anti-Drug Abuse Act of 1986. That law reflected the view in Congress at the time that the rapid increase in use of crack cocaine, especially in urban areas, posed a new crisis and involved a more addicting and dangerous form of cocaine.
Despite law enforcement groups’ support for disproportionately heavy penalties for the cheaper, more readily available crack cocaine, amid official alarm at what many saw as the “crack crisis” of the 1980’s, skepticism grew. Adding to official unease with the sentencing disparity between the two types of cocaine were criminal justice statistics showing crack penalties fell heaviest on African-Americans: they accounted for nearly 80% of defendants sentenced for crack possession or trafficking, despite estimates that other racial groups used the drug at roughly equal rates. Opponents of heavier penalties for crack offenses argued the sentencing laws amounted to racial discrimination.
By 1994, the U.S. Sentencing Commission was calling for reform of the sentencing disparity, a stance it continued to take, in various forms, in later years. In 2009, the House Judiciary Committee approved a bill that would have eliminated the sentencing disparity; to win wider, bipartisan support, Congress cleared the FSA, which had the backing of Senate Judiciary Committee leaders, including then-Senator, now Attorney General, Jeff Sessions. Besides adopting FSA’s reductions in sentencing disparity, the U.S. Sentencing also changed its federal sentencing guidelines to eliminate the five-year minimum for a first-time crack offense, allow courts to consider both mitigating and aggravating factors, and make FSA changes retroactive for defendants who were sentenced before FSA passed.
On March 28, the sentencing commission released a report of its research on whether its sentencing guideline changes to reflect FSA provisions had any effect on recidivism rates among cocaine offenders after their release. The study compared the experience of crack offenders who were released early due to FSA’s changes being made retroactive, with that of pre-FSA crack offenders released before the retroactive changes took effect. For both groups, the study found “virtually identical” recidivism rates (under 38% during the three years after release), and even for about one-third of those who did re-offend, their most serious new offense was violating a court or supervision requirement. For both groups, the median time between release and a new offense was between 14 and 15 months.