Federal Crack Cocaine Sentencing Reform -- Analysis

The Law Has Finally Changed.

On Aug. 3, 2010, President Barack H. Obama signed into law the Fair Sentencing Act of 2010, which reduces — but does not eliminate — the highly controversial and long-contested racial disparity in federal cocaine sentencing. The new law repeals the five-year mandatory minimum for simple possession of crack cocaine — the first time that a mandatory minimum drug sentence has been repealed since the Nixon Administration. This law went into effect on Nov. 1, 2010. In the past, simple possession of 5 grams of crack cocaine triggered a five-year mandatory minimum sentence while possession of the same amount of powder cocaine resulted in no mandatory minimum. Blacks and Hispanics were those primarily punished by this law due to the fact that crack cocaine use was more prevalent in those communities. Going forward, 28 grams of crack cocaine will trigger a five-year prison sentence, and 280 grams of crack will trigger a 10-year sentence. The law could affect an estimated 3,000 cases annually, reducing sentences by an average of about two years and saving taxpayers an estimated $42 million over five years.

This change in the sentencing law was long overdue, as it overwhelmingly punished minorities and poor people without any logical or scientific basis. Unfortunately, the law as passed was not retroactive — meaning those inmates already sentenced will not benefit from this new law. However, many in the legal community are hopeful that Congress will recognize that the law was always unfair and that the new law should apply to those to be sentenced in the future and those who have already been sentenced.

How Does The New Law Change The Old 100-1 Ratio Between Crack And Powder Cocaine?

Under the old law, 5 grams of crack cocaine and 500 grams of powder cocaine triggered the same five-year mandatory minimum sentence. Under the old law, 50 grams of crack cocaine and 5 kilograms of powder cocaine triggered the same 10-year mandatory minimum sentence. This created what was commonly referred to as the 100-1 unfair ratio between crack and powder cocaine. This is no longer.

Here is a chart describing the differences between the old law and the new law:

Law5-Year m/m10-Year m/m
Old Law5 grams of crack
500 grams of cocaine
(100:1 ratio)
50 grams of crack
5 kilograms of cocaine
(100:1 ratio)
New Law28 grams of crack
500 grams of cocaine
(18:1 ratio)
280 grams of crack
5 kilograms of cocaine
(18:1 ratio)

The base offense levels for cocaine base (crack cocaine) changed for those offenses committed after Nov. 1, 2010. The new base offense levels pursuant to the temporary, emergency amendment effective Nov. 1, 2010, are set forth below. After a period of public comment, these base offense levels will likely become official on May 1, 2011.

Level 38
8.4 kilograms or more of cocaine base

Level 36
At least 2.8 kilograms but less than 8.4 kilograms of cocaine base

Level 34
At least 840 grams but less than 2.8 kilograms of cocaine base

Level 32
At least 280 grams but less than 840 grams of cocaine base

Level 30
At least 196 grams but less than 280 grams of cocaine base

Level 28
At least 112 grams but less than 196 grams of cocaine base

Level 26
At least 28 grams but less than 112 grams of cocaine base

Level 24
At least 22.4 grams but less than 28 grams of cocaine base

Level 22
At least 16.8 grams but less than 22.4 grams of cocaine base

Level 20
At least 11.2 grams but less than 16.8 grams of cocaine base

Level 18
At least 6 grams but less than 11.2 grams of cocaine base

Level 16
At least 2.8 grams but less than 6 grams of cocaine base

Level 14
At least 1.4 grams but less than 2.8 grams of cocaine base

Level 12
Less than 1.4 grams of cocaine base