• 07
  • July
    2011

For years, many federal judges have lamented that criminal sentencing guidelines for defendants who were convicted of drug crimes involving cocaine are unfair. Some consider sentencing guidelines to be racist. Since the guidelines were instituted, defendants convicted of drug crimes involving powder cocaine offenses have been sentenced to much shorter prison terms than defendants convicted of drug offenses involving the same quantities of crack cocaine. Historically, black defendants have been more likely to be involved in offenses related to crack cocaine, while white defendants have been more likely to be involved in offenses related to powder cocaine.

Last year, Congress attempted to minimize the disparate sentencing scheme when it passed the Fair Sentencing Act of 2010. Unfortunately, Congress failed to address whether the Act would apply to criminal acts that took place prior to the law's enactment in August 2010. Typically, unless Congress expressly states that a law will apply retroactively, the law only applies to events that take place after enactment.

Despite the lack of an express mandate from Congress, many federal judges have been reluctant to sentence defendants convicted of cocaine-related offenses under the old sentencing scheme. Several judges have acted as if a mandate exists and have sentenced defendants whose offenses took place prior to August 2010 under the new, more equitable, guidelines. However, unless and until the U.S. Supreme Court addresses the inequities of the pre- and post-Fair Sentencing Act of 2010 guidelines, criminal defendants whose cocaine-related offenses occurred prior to August 2010, are more likely than not going to be sentenced under the old, disparate guidelines.