When Congress Passed the Fair Sentencing Act of 2010 (FSA), it reduced the 100 to 1 disparity for crack cocaine offenses compared to cocaine offenses to 18 to 1.  The intent was to reduce sentences and, as an added benefit, reduce the federal prison population.  In 2010, according to an August 2015 report by the U.S. Sentencing Commission, 4,730 individuals were sentenced for crack offenses, whereas in 2014 only 2,366 people were convicted of the same offenses, and they received shorter sentences. However, many prisoner rights advocates believe that the results claimed by the Sentencing Commission could have even been more significant.

The Commission noted that in 2007 it reduced the crack guideline by two levels as an "interim measure" to reflect what it called the overstated seriousness of crack usage as opposed to cocaine usage. Critics of the 100 to 1 ratio said that it was a form of discrimination against African-American offenders, who tended to commit crack offenses rather than cocaine offense.

The Obama Administration has gone on the record as advocating a further reduction of the crack ration to 1 to 1, but has yet to weigh in strongly on the apparent unwillingness of many district and appellate court to extend the clear intent of Congress by denying retroactivity and limiting the impact of sentence relief. The Sentencing Commission notes that despite the decrease in penalties for crack offenders after the passage of FSA, the seriousness of the crack offenses has not increased and "crack use has continued to decline." Some studies have shown that usage has declined 80%.

The Sentencing Commission maintains that legislative change has reduced sentences an average of 35 months for 6,000 drug offenders, and retroactively reduced sentence for approximately 7,000 other drug offenders.  However, other observers feel that other opportunities to reduce federal sentences have been squandered by the courts.

Carly Hudson, author of an article titled "Between a Rock and a Hard Place," argues that "Defendants are consistently denied re-sentencing through direct appeals and through ineffective assistance of counsel claims-two of the most common methods by which FSA-eligible defendants seek re-sentencing.  The third method ... [is] claims under section 3581(c)(2), is the current subject of disagreement among the courts."

Hudson feels that court are misinterpreting the Supreme Court in Freeman v. United States, and Congress's clear intentions to reduce sentences and lower prisoner counts by frustrating many sentence-reduction petitioners. She advocates for a "broader reading of Section 3582(c)(2) that would preserve a path to re-sentencing under the FSA,"  that would make the next self-congratulatory report issued by the Sentencing Commission highlight even more dramatic reductions in crack sentences and federal prisoner counts.

Sources: www.ussc.gov, www.psmag.com

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