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Crack v. Powder: A “Fair” Question

Written by:  Brandon Perloff

In recent years, a drastic change in sentencing guidelines has taken place with regards to penalties imposed on the “crack” or “rock” versus the powder form of cocaine.  The Fair Sentencing Act, which President Obama signed into law in August of 2010, substituted the old guidelines in which an accused convicted of 1 gram of “crack” cocaine would receive the equivalent sentence of another convicted of dealing 100 grams of the powder form of cocaine, with a less disparate guideline of a 18-1 ratio.  (See reference 1.)  The impetus for this change has been traced to “the reality that cocaine crimes resulted in harsher penalties for blacks than for whites, a racial divide not as clear for any other illegal drug.”  (See reference 1.)  This divide arises from the reality that blacks received harsher punishments more often for dealing the “crack” or “rock” cocaine, and whites more often received a lesser punishment for dealing powder cocaine.  (See reference 1.)

After the signing of the Fair Sentencing Act, an issue arose as how the act affected those who committed the crime prior to the signing, but sentenced after.  Attorney General Eric Holder, has said that the government urges the courts to apply the new 18-1 ratio to anyone sentenced after the Act’s signing, no matter when their crimes had occurred.  (See reference 1.)  This Tuesday, the Supreme Court will hear a one-hour oral argument on the matter, in the context of two cases concerning the prison sentences imposed on two defendants convicted of trafficking cocaine.  (See references 2 & 3.)  The threshold issue is essentially one of statutory interpretive concerning whether the 2010 act was meant to apply retroactively.  However, no person involved in the matter can deny the “crack v. powder” controversy and the racial implications and overtones surrounding these arguments.  It leads one to question whether “fair” sentencing should only be afforded to those who waited just a bit longer prior to dealing or possessing cocaine?

1)  Lyle Denniston, Argument preview: The crack cocaine controversy, SCOTUS blog (April, 12, 2012, 6:38 pm), http://www.scotusblog.com/2012/04/argument-preview-the-crack-cocaine-controversy-again/#more-143066 (last visited April. 13, 2012).

2)  Dorsey v. United States: SCOTUS blog, http://www.scotusblog.com/case-files/dorsey-v-united-stesta/ (last visited April. 13, 2012).

3)  Hill v. United States: SCOTUS blog, http://www.scotusblog.com/case-files/hill-v-united-states/ (last visited April. 13, 2012).

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