Sentencing guidelines

By Ezekiel Edwards and Emma Andersson. Edwards is the Director and Andersson is a staff attorney for the ACLU Criminal Law Reform Project.

The Fair Sentencing Act of 2010 (FSA) is actually only kind of fair. The passage of the 2010 law, which reduced the crack to powder mandatory minimum ratio in federal cocaine sentences from 100:1 to 18:1, was a significant step in the direction of fairness. While we applaud this change, we also look forward to the day when Congress adopts the actually fair ratio of 1:1. In the meantime, the Supreme Court has granted certiorari on two FSA cases, Hill v. United States and Dorsey v. United States, both out of the Seventh Circuit. In these cases, the Court will decide whether people whose offense predates the enactment of the FSA but who were sentenced afterwards should be sentenced based on the old 100:1 ratio or the new 18:1 ratio. If the Court rules the wrong way, a sizeable class of people will be excluded from Congress’ attempt to restore fairness and racial neutrality to federal cocaine sentencing, and the kind-of-Fair Sentencing Act will become even less fair.

By Matt Kaiser, an attorney at The Kaiser Law Firm PLLC. Mr. Kaiser blogs at Federal Criminal Appeals Blog.

Reason magazine recently featured an article on President Barack Obama and the drug war. The title, albeit in rather hyperbolic fashion, says it all – “Bummer.”

Many of us thought that when Obama came into office the war on drugs would be different.  Reason’s Jacob Sullum, in his article, “Bummer,” however, takes Obama to task for not living up to the expectations of those who want our national drug policy reformed. I think, though, that Sullum goes a little too far.

The reasons for desperately needing reform are many and existed well before Obama came to office. Mandatory minimums are too harsh and hurt too many low-level participants in the drug trade. Our incarceration rates lead the world – perhaps the most verifiable form of American Exceptionalism we have. We are spending ourselves into oblivion both domestically and abroad. And, apparently, 65 percent of us think that the war on drugs is a failure.

Before he became president, Obama knew our drug policy needed to change. As a candidate for the United States Senate, he described our war on drugs as an “utter failure.” As an Illinois state senator he said that “we can’t continue to incarcerate ourselves out of the drug crisis.” As he was gearing up to run for President, he advocated a “public health” approach to our nation’s problem with narcotics.

Sullum paints Obama too negatively – viewed properly, I think the president’s record has been a mixed bag.