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In 1986, during the Reagan administration’s anti-drug initiative, Congress enacted a federal sentencing policy of punishing crimes involving crack cocaine at a 100-to-1 ratio compared to crimes involving powder cocaine. For example, the sentencing guidelines prescribe the same sentence for a defendant convicted of dealing 500 grams of powder cocaine as they do for a defendant convicted of dealing only five grams of crack cocaine. Congress declined to repeal the 100-to-1 ratio despite the U.S. Sentencing Commission’s contention that the ratio led to exaggerated sentences for crack dealers.

Derrick Kimbrough pleaded guilty to distributing fifty or more grams of crack cocaine, along with other drug- and firearm-related offenses. The federal sentencing guidelines prescribed a sentence of between 19 and 22.5 years, but the district court judge considered this sentence “ridiculous.” Citing the Sentencing Commission’s reports, the judge decided to depart from the 100-to-1 ratio and hand down a sentence of 15 years. Since the Supreme Court’s decision in United States v. Booker the sentencing guidelines have been advisory only, but the guidelines range is still among the factors a court must consider before handing down a reasonable sentence.

On appeal, the U.S. Court of Appeals for the Fourth Circuit rejected the below-guidelines sentence as unreasonable. The Fourth Circuit ruled that trial judges act unreasonably when they depart from the guidelines on the basis of a disagreement with a congressional sentencing policy. Therefore, judges cannot hand down below-guidelines sentences merely in order to avoid the sentencing disparity caused by the 100-to-1 ratio. Needless to say, the U.S. Supreme court upheld the Federal District Trial Judge’s ruling. Here is the link to that case http://www.oyez.org/cases/2000-2009/2007/2007_06_6330.

References

“KIMBROUGH v. UNITED STATES,” The Oyez Project at IIT Chicago-Kent College of Law, accessed June 29,  2012, http://www.oyez.org/cases/2000-2009/2007/2007_06_6330.

On July 28, 2010, The house passed legislation reducing the two-old sentencing disparity between crack and powder cocaine offenses. This legislation is further proof that the war on drugs has never worked.  Democrats and Republicans both agree that drug laws are too harsh and need to be reformed.

Advocates pushed to totally eliminate the disparity but ultimately a compromise was struck between Democrats and Republicans to reduce the 100-to-1 disparity to 18-to-1. The compromise also eliminated the five year mandatory minimum sentence for simple possession of five grams of cocaine (about two sugar packets worth). The repeal of that mandatory minimum is the first repeal of a mandatory minimum drug sentence since the 1970s. Overall, the compromise bill is expected to reduce the federal prison population by thousands of offenders and save an estimated $42 million in criminal justice spending over the first five years.

http://www.huffingtonpost.com/jasmine-tyler/congress-passes-historic_b_662625.html

On April 28, 2011 the Commission submitted to Congress the proposed permanent
guideline amendment implementing the Fair Sentencing Act.   The proposed permanent
amendment will go into effect on November 1, 2011, unless Congress acts to modify or reject the
amendment.   

On June 30, 2011 the Commission voted to give retroactive effect to the proposed
permanent guideline amendment. The effective date of this retroactive effect and changes to
§1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range),
the policy statement governing retro-activity, is November 1, 2011. Until that date, the courts
should apply §1B1.10 as set forth in the 2010 Guidelines Manual (http://www.ussc.gov/Meetings_and_Rulemaking/Materials_on_Federal_Cocaine_Offenses/FAQ/FAQ_Crack_Guideline_Amendment.pdf).

That brings us back Dorsey v. United States.  Is the FSA applicable when the criminal was sentenced after the FSA passed but the crime occurred prior to passage?

Yes. In a 5-4 majority opinion by Justice Stephen G. Breyer, the Court held that the FSA’s lower minimum sentences apply to offenders sentenced after the FSA’s passage, even for crimes committed before its passage. In the Court’s view, Congress clearly intended for the sentencing guidelines to apply to pre-Act offenders. The FSA is intended to create uniformity and proportionality in sentencing, a goal that would be undermined by applying the old sentencing guidelines after the Act’s passage. Instead, applying the old sentencing guidelines would create the exact sentencing disparities that Congress tried to prevent with the FSA.