Late last year, the US Sentencing Commission reduced its recommended sentencing for people convicted of a crack-cocaine offense, and Congress adopted the recommendation. That overturned the infamous "100-to-1" discrepancy between recommended sentences for people caught with crack cocaine (5 grams could get you 20 years in prison) and people caught with powder cocaine (it took 500 grams to get you 20 years). There is still an 18-to-1 discrepancy, but it's progress.
The 100-to-1 ratio was bad for all sorts of reasons: it was based on a faulty premise that rock was 100 times more dangerous than powder (which isn't true) and it disproportionately fell on African-American offenders, taking them out of their homes and communities for unreasonable periods of time and generally eroding trust and faith in the law in those communities.
The over 12,000 prisoners eligible for early release were 85.1 percent black, with an average age of 36.
But only people who were sentenced after the act got the sentence reduction. What about retroactivity or, in the court decision written by Justice Breyer, "did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect?"
The court decided yes. It was a 5-4 vote and the split was familiar: Justices Breyer, Kenedy, Ginsburg, Sotomayor, and Kagan on the yea side and Justices Scalia, Roberts, Thomas, and Alito on the nay side.
During the next two decades, the Commission and others in the law enforcement community strongly criticized Congress’ decision to set the crack-to-powder mandatory minimum ratio at 100-to-1. The Commission issued four separate reports telling Congress that the ratio was too high and unjustified because, for example, research showed the relative harm between crack and powder cocaine less severe than 100-to-1, because sentences embodying that ratio could not achieve the Sentencing Reform Act’s “uniformity” goal of treating like offenders alike, because they could not achieve the “proportionality” goal of treating different offenders (e.g., major drug traffickers and low-level dealers) differently, and because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differences
Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse. It would create new anomalies—new sets of disproportionate sentences—not previously present. That is because sentencing courts must apply new Guidelines (consistent with the Fair Sentencing Act’s new minimums) to pre-Act offenders, see supra, at 13–14, and the 1986 Drug Act’s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them—say, pre-Act offenders who possessed crack in small amounts not directly the subject of mandatory minimums
For example, imagine that on July 1, 2010, both Smith and Jones commit a crack crime identical but for the fact that Smith possesses with intent to distribute four grams of crack and Jones five grams. Both are sentenced on December 1, 2010, after the Fair Sentencing Act and the new Guidelines take effect. Smith’s Guidelines sentence would be two years, but unless the Fair Sentencing Act applies, Jones’s sentence would have to be five years. The difference of one gram would make a difference, not of only one year as it did before enactment of the Fair Sentencing Act, but instead of three years. Passage of the new Act, designed to have brought about fairer sentences, would here have created a new disparate sentencing “cliff.”
Nor can one say that the new Act would produce disproportionalities like this in only a few cases. In fiscal year 2010, 17.8 percent of all crack offenders were convicted of offenses not subject to the 1986 Drug Act’s minimums. 2011 Report 191. And since those minimums apply only to some drug offenders and they apply in different ways, one can find many similar examples of disproportionalities. See Appendix B, infra. Thus, application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would produce a crazy quilt of sentences, at odds with Congress’ basic efforts to achieve more uniform, more proportionate sentences.