How the Fair Sentencing Act Is Still Not So Fair

October 6, 2011  |  

Last year,President Obama signed into law the Fair Sentencing Act, which sought to institute a more rational approach to drug policy by scaling back the harsh mandatory sentences for federal crack cocaine offenses. The new law modifies the 25-year-old statute that has sent thousands of African Americans to prison for crack cocaine convictions while giving lesser sentences to whites arrested with the same amount of cocaine in powder form.  Those convicted of possessing five grams of crack-cocaine under this new law could now expect an average two-year sentence reduction from the five years mandatory sentence. That is, of course, if you qualify.

As welcome as the reforms are, the new change will only benefit about new 3,000 cases a year and 12,000 people, who have already been convicted of drug offenses.  Moreover, much of the law still leaves in place the broad structure of mandatory sentencing for most non-drug offenses, which sometimes accompany those arrested for drug offenses.  Things like mandatory gun sentencing, three-strike laws and the ever-obscure school-zone drug laws all involve stiff penalties, which means that those prosecuted could receive an unfair and long sentencing for even the most minor of drug offenses.

Take for instance, the case of Reynolds Wintersmith, a Illinois resident whose first time drug arrest in 1994 at 17-years of age led him to a federal life sentence.  It was a mandatory sentence that troubled even the judge, who questioned if lawmakers really intended this kind of outcome for someone so young. Although the Fair Sentencing Act applied to all defendants sentenced after that date, regardless of when the criminal conduct occurred, Wintersmith’s drug case did not qualify for sentencing reduction because of the way in which his case was prosecuted.

Although Wintersmith was a street dealer, his case was bundled into a larger drug conspiracy case involving the entire network of the Gangster Disciples. The bundling meant that Wintersmith was among several others to be held accountable for being a leader in the gang, using weapons to protect its drug trade and pushing large quantities of cocaine and crack on the street.  It all added up to mandatory life, a sentence in which the original judge had no wiggle room to exercise leniency and in which the appellate courts no cause to hear his case.

Courts are using this gray area of the law to get around the new required sentencing guidelines. Take for instance the case of Felix Booker, who was nabbed earlier this year in Tennessee with 10.2 grams of crack cocaine hidden inside of him.  Although an original search of Booker at the time of his arrest, yielded only a small quantity of marijuana, authorities, on suspicion that Booker was hiding drugs in unseen places, used a life-threatening medical procedure, which caused temporary paralysis, to physically extract the drugs out of his body.   Questions about violation of his 4th Amendment rights against unreasonable search and seizures aside, the federal court still sentenced Booker to a mandatory prison term for five years because he was convicted before the Fair Sentencing Act was passed but not yet sentenced.

There are currently two others bill before Congress, which seek to clarify the original Fair Sentencing Act including the Fair Sentencing Clarification Act of 2011, which, if it passes, would make the new guidelines for mandatory minimums, another exemption from the original law, retroactive.   There is also the bipartisan supported Fairness in Cocaine Sentencing Act of 2011, which seeks to totally eliminate the disparity between powder and crack cocaine sentences (The Fair Sentencing Act only reduced the disparity down from 100 to 1 to 18 to 1). However, both of these bills have languished in Congress and the second bill is not even retroactive, which means that we might see another bill just to correct the inequalities in this clarifying bill.  And so goes Congress. If anything, this patchwork effort to correct drug sentencing laws further seek to illustrate just how decriminalization of drugs, in any regards, will never be a full substitution for legalization.

Charing Ball is the author of the blog People, Places & Things.

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