When Is It Fair To Apply The Fair Sentencing Act? by Blue LLP


Posted on 10 Dec 2011


When Is It Fair To Apply The Fair Sentencing Act?

Congress enacted the Fair Sentencing Act (FSA) on August 3, 2010. This historic and much overdue legislation was a major step towards addressing the disparity between crack and powder cocaine sentencing law. The new law increased the quantity thresholds that trigger mandatory minimum punishments for federal drug offenses involving crack. Now, the 5-year minimum is triggered by a quantity of 28 grams of crack (instead of 5 grams), and the 10-year mandatory minimum is triggered by a quantity of 280 grams of crack (instead of 50 grams).

The FSA also reduced the mandatory minimum term of imprisonment from life to forty years for those offenses involving much larger quantities of crack.  In effect, these changes reduced the powder to crack ratio from 100 to 1, to 18 to 1.  According to U.S. Attorney General Eric Holder, the FSA puts the country “closer to fulfilling its fundamental, and founding, promise of equal treatment under law.”

After the FSA was enacted, federal prosecutors, defense attorneys, and judges were left with figuring out how the new law should actually be applied.  While most courts agreed that the modified mandatory minimums should not apply to defendants who were sentenced prior to August 3, 2010, there was less consensus as to how (or if) the law applied to those sentenced after the enactment date.  While some courts ruled that the FSA should not apply to defendants whose offense conduct occurred prior to the implementation of the Act, other courts held that Congress’ intention was to apply the revised – and more fair - penalties to all sentences that took place after the enactment date, even if the defendant’s offense conduct occurred prior to the new law.

In the midst of this uncertainty, the Office of the Attorney General weighed in.  This summer, Attorney General Holder circulated a memo to federal prosecutors stating that the FSA should apply to all sentences imposed on or after August 3, 2010, regardless of when the offense conduct took place.  Mr. Holder urged that application of the law in this way was necessary to promote fairness and public trust in the criminal justice system.

Despite Attorney General Holder’s directive to federal prosecutors to apply the FSA accordingly, his instructions were ignored by many prosecutors, including prosecutors in the Eastern District of North Carolina.  An especially effective strategy undertaken by many federal prosecutors is to indict a defendant with conspiracy to commit a drug offense with a beginning date that precedes August 3, 2010, thus ensuring that the offense conduct predates the enactment of the FSA.

The U.S. Supreme Court has finally decided to address the inconsistent application of the law.  On November 28, 2011, the Court agreed to decide whether the FSA should apply to sentencing hearings that occur on or after the law’s effective date if the offense conduct occurred prior to that date.  Soon, we will know whether the Court agrees with Attorney General Holder’s commitment to fairness and integrity, or whether it supports the practice of punishing defendants convicted of crack offenses 100 times more harsh than their powder cocaine counterparts.

In the midst of this uncertainty, the Office of the Attorney General weighed in.  Attorney General Holder circulated a memo to federal prosecutors stating that the FSA should apply to all sentences on or after August 3, 2010, regardless of when the offense conduct took place.  Mr. Holder urged that application in this way was necessary to promote fairness and public trust in the criminal justice system.

Despite Attorney General Holder’s directive to federal prosecutors to apply the FSA accordingly, his instructions were ignored by many, including Assistant U.S. Attorneys here in the Eastern District of North Carolina.  An especially effective strategy undertaken by many AUSAs is to indict a defendant with conspiracy to commit a drug offense with a beginning date that precedes August 3, 2010, thus ensuring that the offense conduct predates the enactment of the FSA.

The U.S. Supreme Court has finally decided to address the inconsistency among lowers courts.  On November 28, 2011, the Court agreed to decide whether the FSA should apply to sentencing hearings that occur on or after the law’s effective date if the offense conduct occurred prior to that date.  Soon we will know whether the Court agrees with Attorney General Holder’s commitment to fairness and integrity, or whether it supports the practice of punishing defendants convicted of crack offenses 100 times more harsh than their powder cocaine counterparts.