Due to a hitch in the federal law passed last year that reduces the disparity in sentencing for crack cocaine offenses and cocaine in its powdered form, defendants who are being prosecuted for crimes committed before the law took effect are being sentenced under the old harsher sentencing rules. There is no reason for this. Democrats and Republicans alike acknowledge the unfairness of the prior sentencing scheme. But as things stand, federal district court judges are in a bind and are balking. Congress should fix this, or prosecutors should stop pushing for sentencing under the old scheme.
It was in the wake of the crack cocaine epidemic decades ago that Congress established a sentencing scheme punishing offenses for crack cocaine 100 times as harshly as offenses involving cocaine in its powdered form, despite no chemical difference between the two. A defendant guilty of possessing as little as 5 grams of crack — about a teaspoon — received the same five-year mandatory sentence as someone with two cups worth, or 500 grams, of powdered cocaine. And 50 grams of crack cocaine brought the same 10-year mandatory minimum sentence as 5,000 grams of powder cocaine.
The inherent unfairness is obvious. Low-level street dealers could receive harsher punishment than major distributors, and many did. Federal judges complained about it for years. Racial disparities were also staggering, with crack cocaine more popular among blacks and cocaine in its powder form more popular with whites. In 1993, 88.3 percent of federal offenders in court for crack cocaine offenses were African-American.
After pressure from the U.S. Sentencing Commission, Congress finally passed the Fair Sentencing Act of 2010 by a unanimous vote in the Senate and a voice vote in the House. Sentencing disparities were reduced to 18-to-1 — an imperfect political compromise.
But what Congress failed to make clear was that the new rules should apply to cases in which the crime occurred before the act's effective date and the defendant had not yet been sentenced. Across the country, federal judges have been pressed to apply the old minimum sentences to those cases — with only a few refusing to do so.
Broadly speaking, statutes do not get applied retroactively without an express provision in the statute. But in this case, it is clear that Congress intended to override the prior statute to put an end to the injustice of disparate sentencing as soon as possible. Federal prosecutors have the discretion to be tough but flexible in dealing with these cases, and Congress should pass legislation clarifying the situation.