Fair Sentencing Act should be applied to unsentenced cases to correct racial disparity

In Barcelona, people sell cans of coke on the street. It seems innocent enough until you realize, it ain’t cola, my friends.

Yes, apparently cocaine is so prevalent in this infamously “independent” Spanish region that if you breathe you get a whiff of the “crunch and munch” (really trying to make use of the new street terms I learned).

We may not have the same problem here in the states, but we do have our own age-old issues with crack and cocaine.

There are some important differences though: One is more refined than the other, one you snort, one you smoke, one you can make with baking soda, and a little bit of one can get you in a lot more trouble than a little bit of the other.

It used to be that 5 grams of crack would get you five years in jail, and 500 grams of cocaine would get you “an equivalent sentence”:http://www.scotusblog.com/2012/04/argument-preview-the-crack-cocaine-controversy-again/.

It’s well known that this 100-1 ratio has had an unfair effect on racial minorities, specifically the African American community, and as Justice Sonia Sotomayor “stated Tuesday”:http://www.nytimes.com/2012/04/18/us/supreme-court-weighs-revisions-in-cocaine-case-sentences.html, “I’ve been a judge for nearly 20 years, and I don’t know that there’s one law that has created more controversy or more discussion about its racial impact than this one.”

This old law was remedied on Aug. 3, 2010, when President Barack Obama signed the Fair Sentencing Act, reducing the overall punishments for crack offenses, effectively making the ratio 18-1 (28 grams of crack to 5 years in prison).

Now that the new law has been enacted, what’s at issue is whether it applies to crimes committed before Aug. 3, 2010.

Traditionally, laws do not apply retroactively unless Congress specifies that they should. In this case, Congress didn’t specify anything.

So now we’re left with a number of people who committed crack or cocaine offenses before August 2010, but weren’t sentenced until after the Fair Sentencing Act went into effect.

The Supreme Court justices seem convinced that if Congress wanted to have the law apply retroactively, they would have said so.

Well, the thing is, they sort of have.

They may not have stated explicitly that in the law, but two congressional members, including our own Illinois Sen. Dick Durbin, “submitted a letter”:http://sentencing.typepad.com/files/fair-sentencing-act-ag-holder-letter-111710.pdf to Attorney General Eric Holder, which said the goal of the act was to make federal cocaine sentencing fair as soon as possible.

“The Fair Sentencing Act’s reduced crack penalties should apply to defendants whose conduct predates enactment of the legislation but who have not yet been sentenced,” said Durbin in the letter. ”Otherwise, defendants will continue to be sentenced under a law that Congress has determined is unfair for the next five years … This absurd result is obviously inconsistent with the purpose of the Fair Sentencing Act.”

Aside from the letter, it should be clear that the point of the new law was to remedy a racial disparity, and it doesn’t really make sense for this disparity to be preserved for those who were unfortunate enough to commit crimes before the law went into effect.

Suddenly if you sold crack on Aug. 2nd, 2010 you’re so much luckier than someone who sold crack on Aug. 4th, 2010. Something about that just doesn’t seem right.

Take for example, the case of Corey Hill who wasn’t convicted until 2009 after he sold 53 grams of crack to a government informant in 2007. In December 2010, just 3 months after the Fair Sentencing Act was enacted, a Chicago judge sentenced him to 10 years in prison. If the new law had applied, Hill would have only gone to jail for four years, said “The Los Angeles Times”:http://articles.latimes.com/2012/apr/16/nation/la-na-court-crack-20120417.

More than just that, how can we ask judges to award a sentence based on a law that Congress has already deemed as unfair?

Most importantly, we’re creating a huge divide between defendants who committed the exact same crimes but at different times.

That wasn’t the intention of the law, and the Supreme Court should recognize that.

Nishat is a senior in LAS.