Yesterday, President Obama signed S.1789, the long-awaited sentencing fairness act that reduced the appalling 100-to-1 sentencing disparity between crack cocaine and powder cocaine. It still doesn’t go all the way to undo the hysteria of the crack epidemic, however. For powder cocaine there’s a 10-year minimum for selling or possessing with intent to sell 5,000 grams — for crack cocaine the figure was just 50 grams, but that just went up to 280 grams. There’s a 5-year minimum for selling/possessing with intent 500 grams of powder — for crack that just went up from 5 grams to 28 grams. So there’s still a roughly 18-to-1 sentencing disparity. And the 5-year mandatory minimum for mere possession of crack — personal use here — was eliminated entirely (it had applied to possession of 5 grams for first offenders, 3 grams for second offenders, and 1 gram for third offenders).
That’s all good news. Getting rid of the mandatory minimum for mere possession is the best part, because throwing people in jail for mere possession is stupid, wrong, unjust, and doesn’t solve the problem. Drug court and treatment diversion programs work very well. (The new law also requires a federal report one year from now on just how well the federally-funded drug court programs are doing.) Reducing the sentencing disparity from the appalling (and racist) 100-to-1, to the merely shocking (and still racist) 18-to-1… well, it’s better than nothing. Powder and crack are equally bad, there is no disparity in their effects, their addictiveness, or anything meaningful. There shouldn’t be any disparity at all. But reducing it is a step in the right direction, and the new law is rightly praised for so doing.
But in all the hoopla, the press (and the defense bar) seem to have overlooked the other provisions of the new law — provisions which can dramatically increase some drug sentences.
There are now 2+ level enhancements for drug crimes involving violence or the threat of violence (not unheard of). There are now 2+ level enhancements if premises were used for the manufacture or distribution (very common). There will be 2+ level enhancements if the defendant was using his girlfriend to mule the drugs, or an addict to sell the drugs on the street in exchange for a freebie, or any other typical buffering relationship. There will be 2+ enhancements if they sold to, or involved, someone under 18, someone over 64, or someone who was pregnant (common). There are 2+ enhancements if the defendant made his living by selling drugs (a majority of cases, no?).
That’s just a partial list of enhancements. But you can see how a typical drug defendant can now wind up facing significantly more time now than before Obama signed “the Fair Sentencing Act of 2010. ”
We can think of a number of ways to describe the new law. “Fair Sentencing” is not one of them.