The End of the “War”? Sentencing in Drug Cases in the Wake of the Fair Sentencing Act of 2010 by Monica Harris

For decades the Federal Sentencing Guidelines have subjected defendants in drug cases to drastically different sentences depending on whether their offenses involved crack or powder cocaine.  Any cursory study of the “War on Drugs” reveals that crack cocaine is much more likely to be used by minority populations, or in low-income areas.  Conversely, powder cocaine is more often used in middle class communities.[1]  The Anti-Drug Abuse Act of 1986 and Federal Sentencing Guidelines proscribe that district judges should use a 100:1 ratio for the amount of powder cocaine compared to crack that is required to trigger a mandatory minimum sentence.[2]  The practical implication of this law has been that powder cocaine users receive drastically lower sentences.

For example, in United States v. Corner, the Seventh Circuit refused to reconsider the sentence of a defendant in a crack cocaine case.[3]  The crack defendant had been sentenced to 188 to 235 months where he would have only been sentenced to 151 to188 months had his offense involved powder cocaine.[4]  This case does not even present the most egregious example, because the defendant in Corner was a career offender.  In some federal circuits, career offenders are not able to be relieved from mandatory minimum sentences in the same way that the Supreme Court permits the district court to reduce a sentence based on a decision to simply not follow the 100:1 crack to powder ratio.[5]  The most egregious case under the Anti-Drug Abuse Act of 1986 is one where a defendant possessing a small quantity of crack is sentenced using a five year mandatory minimum when their peer who possess cocaine may not even end up serving jail time.

Due to the easily recognizable fairness concerns this issue presents, recent legislation has reduced the crack to powder ratio to 18:1, meaning it now requires 18 times more powder cocaine than crack to trigger the same mandatory minimum sentence.[6]  The Fair Sentencing Act of 2010 became law on August 3, 2010 when President Barak Obama signed the bill originally proposed by Illinois Senator Richard Durbin.  Among other things, the Act eliminates the five-year mandatory minimum sentence for simple possession of crack cocaine.[7]

Work is needed to uncover the practical implications the Kimbrough decision and judicial activist movements will have on decreasing crack and powder cocaine sentencing disparities.  In light of the passage of the Fair Sentencing Act of 2010, it is especially necessary to analyze district and circuit court cases decided to date in this new climate.  This article endeavors to uncover new trends, test hypothesis critics made about the effects of a return to judicial discretion, and see if these two new legal steps really do any work to bring the nation closer to achieving a 1:1 crack to cocaine ratio either in practice, or on paper.[8]  

[1]           Lawmakers suggested the lower price of crack cocaine explained why it was suspected to be more responsible for inner city crime than powder cocaine.   Nekima Levy-Pounds, Can These Bones Live? A Look At The Impacts Of The War On Drugs On Poor African-American Children And Families, 7 HASTINGS RACE AND POVERTY LAW JOURNAL 353, 3 (Summer 2010).

[2]               Frontline: Drug Wars: Thirty Years of America’s Drug War,, available at (hereinafter Frontline)

[3]              See United States v. Corner, 598 F.3d 411, 413 (7th Cir. 2010).

[4]               See id.

[5]               See id.

[6]              See S. 1789, 124th Congress (2010).

[7]               See id.

[8]              This begs the question that if these recent reforms, using incremental change in the form of legislative enactments and increased judicial discretion, have not achieved the 1:1 crack to powder cocaine sentencing ration, what will? The focus of this article is not is not to evaluate the social norms that are the root causes of the existing sentencing disparities both within the drug cases sentencing structure and system-wide criminal justice system.  Themes like prosecutorial discretion, racial politics, and lack of ethnic and economic diversity on the bench are always themes relevant to sentencing analysis. This paper assumes these types of themes are still in play.  See John H. Kramer and Jeffery T. Ulmer, SENTENCING GUIDELINES: LESSONS FROM PENNSYLVANIA (Lynne Rienner Publishers 2009).