Recently in Fair Sentencing Act Category

U.S. Sentencing Commission Decides to Apply Fair Sentencing Act Retroactively

June 30, 2011, by The McKellar Law Firm, PLLC

Federal Criminal Defense Attorneys are celebrating a decision by the United States Sentencing Commission will affect the length of sentences being served by thousands of people imprisoned for crack cocaine-related offenses. As discussed previously, under sentencing guidelines enacted in 1986, a person convicted for an offense involving crack cocaine could face significantly longer prison terms than a person caught with the same amount of powder cocaine.


On August 3, 2010, President Obama signed the Fair Sentencing Act of 2010 ("FSA") into law. The FSA was intended to reduce the dramatic disparity in sentencing between individuals convicted of drug offenses involving crack cocaine compared to powder cocaine.
While critics of the old guidelines applauded the FSA, it was unclear whether these changes in sentencing should be applied retroactively to cases where a defendant had already been charged prior to the FSA taking effect. Courts were divided on the issue. Some courts applied the FSA's guidelines while others did not, leading to widely varying sentences for almost identical offenses.

As reported in the New York Times on June 30th, the Sentencing Commission clarified the situation by voting that the FSA's guidelines should be applied retroactively. The Commission determined that retroactive application of the FSA was the appropriate decision given the inherent unfairness of the previous guidelines. The decision affects approximately 12,000 federal inmates currently incarcerated for crack-related offenses. Those inmates can apply to a judge for a sentencing reduction. If approved, prisoners could see an average sentence reduction of around three years. The Sentencing Commission's decision is not final; Congress can overrule the Commission before the revised policy takes effect on November 1.

Sixth Circuit Courts Are Split on Whether the Fair Sentencing Act Should Be Applied Retroactively

June 10, 2011, by The McKellar Law Firm, PLLC

Federal criminal defense attorneys have argued for years over the seemingly unfair sentencing disparities for crack cocaine compared to powder cocaine in federal drug cases. Critics of sentencing guidelines pointed out that a person could have 100 times as much powder cocaine as a person carrying crack cocaine, yet both could receive the same sentence. The debate was heightened because studies demonstrated that crack cocaine use is more common in African-American communities while powder cocaine use is more common among whites. Thus, critics argued that the sentencing guidelines had a disproportionate and unfair impact on African-American defendants. The Fair Sentencing Act of 2010 ("FSA") is designed to reduce this disparity dramatically.


A new debate has now emerged: should the new guidelines in the FSA be retroactively applied to people who were charged with a crack-related offense before the FSA became law? If the FSA were retroactively applied to these cases, nearly 13,000 prisoners could be affected. The FSA itself, however, does not state whether Congress intended it to apply to such cases. This has led to a split of opinion among different courts about how to interpret the FSA, resulting in widely varying sentences among defendants.

For example, and as reported in the Times Free Press, two cases illustrate the courts' inconsistency in applying the FSA retroactively. In separate cases, Toney Robinson was facing a 10-year prison sentence and Jackie Campbell a 20-year sentence. Both offenses were crack-related, occurred before the FSA become law, and both of the defendants pled guilty. Robinson was sentenced to three years on the drug charge, yet Campbell was sentenced to the full 20 years. The difference was that the judge in Campbell's case did not interpret the FSA to apply retroactively. Therefore, Campbell was sentenced under the old guidelines. The judge in Robinson's case, however, applied the FSA's new guidelines retroactively, resulting in significantly less jail time.

Both cases are being appealed to the Sixth Circuit Court of Appeals. Meanwhile, other courts are also dealing with the same problems. The First Circuit has upheld retroactive application of the FSA, while the Seventh Circuit has reversed such an interpretation. With so many people's sentences potentially affected by retroactive application of the FSA, defendants will almost certainly ask the Supreme Court to resolve this issue.