Tomorrow, the U.S. Sentencing Commission will vote whether to make reductions in the new guidelines for crack cocaine offenses retroactive to persons who were sentenced before the guidelines went into effect on November 1, 2010. [Update 7/1/11: The Commission did vote to make the changes retroactive effective November 1, 2011]. The new guidelines generally reduce the crack-powder cocaine ratio to 18:1 but also add some enhancements. The smart money is betting the Commission will make the amended crack guidelines retroactive, at least to some extent. This will help a large number get sentence reductions, but will not allow any sentenced inmate to reduce his or her sentence below the 5 or 10-year statutory minimum. This post is to discuss the current state of the law on the retroactivity of the reduced mandatory minimums in the Fair Sentencing Act of 2010, not the guideline reductions.
First, some background. On August 3, 2010, President Obama signed the Fair Sentencing Act of 2010 into law to "restore fairness to Federal cocaine sentencing." Among other things, the law modified the quantity of crack cocaine that subjects defendants convicted of federal offenses to the enhanced penalties set forth in 21 U.S.C. § 841(b)(1). The quantity of crack cocaine triggering a 5-year mandatory minimum term of imprisonment increased from 5 to 28 grams, and the quantity of crack cocaine triggering a 10-year mandatory minimum prison term increased from 50 to 280 grams. It also eliminated the 5-year mandatory minimum for simple possession of 5 grams or more of crack cocaine under 21 U.S.C. §844(a). So simple possession of crack cocaine in any amount is now a 1-year misdemeanor under section 844(a).
Everyone agrees that the new law applies to all defendants convicted of federal crack cocaine offenses that occurred on or after August 3, 2010. Here, I explain the law on applying the Fair Sentencing Act retroactively to sentences imposed for crack cocaine offenses that occurred before the law was passed. In short (and oversimplifying a bit), there are two distinct categories with different retroactivity rules for the Fair Sentencing Act's reduced mandatory minimums: (1) defendants who were sentenced before August 3, 2010 and (2) those who were sentenced on or after August 3, 2010.
1) Defendants Sentenced Before August 3, 2010: So far, every court that has addressed the question has ruled that the Fair Sentencing Act's reduced mandatory minimums do not apply to persons sentenced before August 3, 2010. This includes the Ninth Circuit. See U.S. v. Baptist, No. 09-50315 (9th Cir. June 2, 2011). The best hope here is probably proposed legislation in Congress. According to FAMM.org, the Fair Sentencing Clarification Act of 2011 (introduced in the House on June 23, 2011), would allow inmates sentenced before August 3, 2010 to apply to district courts to reduce their sentences under the modified mandatory minimums in the Fair Sentencing Act. No telling if or when the bill will pass, or how the final version will look if it does become law.
Defense attorneys should also consider submitting a petition to commute a crack cocaine sentence to the sentence that would have been imposed had the defendant been sentenced under the current law. In other words, rely on the purposes of the Fair Sentencing Act and basic principles of fairness and justice. Although President Obama has denied over 3,000 commutation petitions since taking office without a single grant, Fair Sentencing Act commutations petitioners are in a unique category. Congress has already found that many prior federal crack cocaine sentences were unjust and excessive. Instructions on how to apply are available at Office of Pardon Attorney.
2) Defendants Sentenced On Or After August 3, 2010: Here the news is better. Numerous district courts (though not all) have applied the Fair Sentencing Act retroactively to persons sentenced after the Act passed even though their conduct occurred before it was enacted. See FD Crack Resource Page 6/16/11 List. And the First and Eleventh circuits held so in the last month. United States v. Douglas, No. 10-2341, 2011 U.S. App. Lexis 10922 (1st Cir. May 31, 2011) (here); [updated 7/6/11] United States v. Rojas, No 10-14662 (June 24, 2011) (here). (Some courts have made a distinction regarding defendants sentenced between August 3, 2010 and November 1, 2010, but Rojas rejects it.). I expect the Ninth Circuit to decide the issue before the end of the year. Briefing available upon request.
[updated 7/16/11: This last paragraph has now become largely moot as, on July 15, 2011, the U.S. Attorney General agreed that the FSA is to be applied to all persons sentenced on or after August 3, 2010, even if the offense occurred before that date. See Holder 7/15/11 Memo].
[Further update 5/24/12: The Supreme Court will soon decide the retroactivity issue for defendants sentenced on or after August 3, 2010 in two consolidated cases, Dorsey v. United States, 11-5683 and Hill v. United States, 11-5721].
On 6/21/12, the Supreme Court decided, 5-4, that the FSA of 2010, with its reduced mandatory minimum penalties for crack cocaine cases, applies to all those sentenced on or after it became law, on August 3, 2010. See Dorsey v. United States.