Fair Sentencing Act of 2010

Nobody ever said using drugs is a good idea, but it's a bad idea turned nightmare when it comes to sentencing, especially if you are Black and the drug is crack cocaine. That nightmare is otherwise known as "mandatory minimums."

It works like this: If you're sentenced for crack cocaine (which has historically been disproportionately used by African Americans), you'll be sent to federal prison for far longer than your (predominately white) counterparts caught with powder cocaine. Same drug, same crime, yet a vast difference in the time you must serve.

To be specific: Under current law five grams of crack cocaine and 500 grams of powder cocaine trigger the same five-year sentence.  Fifty grams of crack cocaine and five kilograms of powder cocaine trigger the same 10-year sentence.  This creates what is commonly referred to as the 100-to-one ratio between crack and powder cocaine. (Source: Families Against Mandatory Minimums)

But things are about to change.

Today Congress approved a bill that would begin to remedy this by narrowing the disparities between mandatory crack and powder cocaine sentences. The Fair Sentencing Act of 2010 will next go to President Obama, who is expected to sign it into law.


This is a major victory for prison reform advocates who have long pointed out the injustices in mandatory minimums.


According to Families Against Mandatory Minimums, The Fair Sentencing Act would:

• Replace the 100-to-1 ratio with an 18-to-1 ratio (28 grams would trigger a 5-year mandatory minimum and 280 grams would trigger a ten-year mandatory minimum)
• Eliminate the five-year mandatory minimum for simple possession of crack cocaine;
• Call for increased penalties for drug offenses involving vulnerable victims, violence and other aggravating factors; and
• Require a report on the effectiveness of federally funded drug courts.  (Source: Families Against Mandatory Minimums)

 The Sentencing Project, a national advocacy organization for prison reform, makes clear what's happened as a result of the injustice of sentencing disparities for drug offenses: 

 "More than 60% of the people in prison are now racial and ethnic minorities. For Black males in their twenties, 1 in every 8 is in prison or jail on any given day. These trends have been intensified by the disproportionate impact of the 'war on drugs,' in which three-fourths of all persons in prison for drug offenses are people of color."

They said this about today's vote:

"[We have] long advocated for the complete elimination of the sentencing disparity that has doled out excessive and harsh penalties, and created unwarranted racial disparity in federal prisons. Currently, 80% of crack cocaine defendants are African American, and possession of as little as 5 grams of crack cocaine subject defendants to a mandatory five-year prison term. For decades the controversial cocaine sentencing law has exemplified the disparate treatment felt in communities of color and the harshness of mandatory minimum sentences..."

But be clear about this bill -- a disparity will still exist (the quantity disparity between crack and powder cocaine would move from 100 to 1 to 18 to 1) and the law would not be retroactive for people currently incarcerated with unfairly long sentences under current law. Today marks progress but not the end of the fight for prison reform and fairer sentencing.

Wade Henderson, president of the Leadership Conference on Civil and Human Rights, said, "While the bill doesn't completely eliminate the unjust and unjustifiable disparity between sentences for crack and powder cocaine that has decimated African-American communities across the nation, it will go a long way toward alleviating some of the pain felt in these communities..."

Minnesota's Pam Alexandar was on the leading edge in identifying and seeking to remedy these disparities on a local level when she was a Hennepin County judge. In 1991, she dismissed charges against five African American men accused of using crack cocaine because they would have faced a minimum 10 year sentence versus a 5 year sentence if they had been caught using powder cocaine. Their lawyer argued that this sentencing disparity resulted a violation of his clients' equal rights protections because overwhelmingly users of crack cocaine were African American. Alexander agreed and her ruling was later upheld by the Minnesota Supreme Court (The Minnesota Legislature later addressed the matter by raising sentences for powder cocaine users, further swelling prison ranks and dodging the problems with mandatory minimums in general).

I wonder what she thinks of today's vote? Does it feel bittersweet? My guess is that she sees this day for what it is -- an important step in the right direction, but with oh so far to go before racial disparities in sentencing are but a bad dream from an unjust past.


July 30 Update:
An article in the July 30 Star Tribune, Congress affirms Hennepin County judges call, answers my question about Pam Alexandar and what she thinks about the Fair Sentencing Act. It also affirms her groundbreaking work on this issue two decades ago. Saying she had foresight is an understatement!


From the Star Tribune story:

"In 25 years on the bench, former Hennepin County Judge Pamela Alexander received her share of death threats. But none came as quickly as the day in 1991 when she ruled that it was racially biased and unfair to order different sentences for possessing crack cocaine as opposed to powder cocaine.


"The minute I handed down that opinion and it hit the news, I got death threats before I left work that day," Alexander said Thursday. "They said, 'You're letting all black defendants go; you're horrible and you need to die.'''


Nearly two decades after her controversial ruling, Congress finally followed Alexander's lead this week and narrowed the sentencing disparities between those caught with crack and powder cocaine...

...Despite the validation from Washington, Alexander isn't one to gloat. In fact, she's feeling rather bittersweet. "It's significant, but I feel kind of sad for all those young people in that 20-year time frame who have gone to prison for 10 or 15 years when they might have gotten less time or treatment and could have been contributing members of the community," said Alexander, 57, who directs the Minneapolis-based nonprofit Council on Crime and Justice." 

Amen, Judge. Amen