Making the Fair Sentencing Act Fair

The federal Fair Sentencing Act of 2010 significantly reduced the sentences for defendants who are convicted of violating the crack cocaine laws. Should the sentences that the new Act provides for be given to defendants who were convicted before the Act was passed, but who have not yet been sentenced?

The US Supreme Court is likely to answer this question when it decides the cases of Dorsey v. US and Hill vs. US. The decision is particularly important because the former sentences for crack cocaine violations were widely viewed as racist. Crack cocaine was a “black man’s crime” while powder cocaine was a “white man’s crime,” and until the passage of the Fair Sentencing Act violators of crack cocaine laws werepunished far more harshly than violators of powder cocaine laws.

Whichever way the majority rules, the Court’s opinion will no doubt review the Act’s language with a fine tooth comb in the course of deciding what Congress intended. But there’s a good chance that Congress had no intent beyond punting the issue to the courts to make a decision that the legislators should have made themselves.

In my opinion, the only fair outcome is for the Court to apply the reduced sentencing provisions to all those people still awaiting sentencing. The racial disparity in sentences for for violations of the cocaine laws has gone on long enough. Congress has established a more enlightened and fair sentencing policy. Though Congress may not have spoken as clearly as it might have, the Supreme Court needs to apply the new policy to as many people as possible.