The emergence of crack cocaine in Los Angeles gave rise to what the public and the media viewed as an epidemic of alarming proportions. As crack cocaine began to proliferate throughout the country in the 1980s, public fear of the devastating new drug, instigated by sensationalist media coverage, was widespread. The political dialogue surrounding the crack epidemic was equally sensationalistic. Public frenzy surrounding crack cocaine peaked in June 1986,when Len Bias—a basketball superstar at the University of Maryland—died of a tragic overdose just two days after the Boston Celtics drafted him second overall in the NBA draft. Congress recognized the legitimate public health and safety concerns raised by crack cocaine shortly after Bias died, and a bipartisan consensus emerged to craft a legislative response—the Anti-Drug Abuse Act of 1986 (ADAA).
In less than a decade, the United States Sentencing Commission (Sentencing Commission) concluded that the ADAA was premised on faulty assumptions about crack, produced anomalous disparities in federal cocaine sentencing, and had a vastly disproportionate impact on African Americans. Despite mounting concerns about the ADAA sentencing regime, the ADAA mandatory minimums remained federal cocaine sentencing policy for twenty-four years, until Congress passed the Fair Sentencing Act of 2010 (FSA). Through the FSA, Congress prospectively amended the ADAA mandatory minimums by increasing the threshold drug quantity required to trigger the statutory minimums—replacing the 100-to-1 sentencing ratio with an 18-to-1 ratio. The FSA also directed the Sentencing Commission to promulgate emergency amendments to the Sentencing Guidelines (Guidelines) to reflect the new, comparatively lenient FSA power-to-crack quantity ratio. The Sentencing Commission promulgated these amendments and subsequently decided to apply them retroactively. The retroactive amendments allowed for Guidelines offenders—that is, prisoners sentenced to Guidelines sentences above or below the ADAA mandatory minimums—to obtain minor sentence reductions pursuant to 18 U.S.C. § 3582(c)(2).
Although the Sentencing Commission applied the newly promulgated Guidelines retroactively, Congress did not include an express statement of retroactivity in the FSA to apply the newly enacted mandatory minimums retroactively. Unless it was the “fair implication” of Congress to apply the FSA retroactively, the saving statute triggers a legal presumption that the remedial amendments to the ADAA mandatory minimums apply prospectively. Because the Sentencing Commission lacks authority to alter the statutory minimums, and the FSA does not contain an express statement of retroactivity, prisoners currently serving ADAA mandatory minimum sentences—unlike their counterparts serving Guidelines sentences—are ineligible for retroactive sentence reductions based on the newly enacted FSA mandatory minimums.
To further complicate this legal landscape, in 2012, the Supreme Court held that the FSA is, in a sense, partially retroactive, in that the Act’s mandatory minimums apply to crack offenders arrested before but sentenced after the passage of the FSA. Nonetheless, the prevailing interpretation of the FSA, unanimously endorsed by the federal circuit courts of appeals, is that the FSA mandatory minimums do not apply retroactively for the purpose of discretionary sentence-modification proceedings under § 3582(c)(2). Courts addressing the issue of retroactivity—most notably the en banc Sixth Circuit in United States v. Blewett (Blewett II)—have expressed serious constitutional concerns about categorically denying ADAA mandatory minimum offenders the opportunity to obtain sentence reductions while allowing similarly situated Guidelines offenders to obtain the same relief.
This Comment provides an in-depth overview of federal cocaine sentencing policy and analyzes the practical and constitutional concerns raised by the prevailing interpretation of the FSA mandatory minimums. This Comment contends that permitting the remedial amendments to the ADAA mandatory minimums to apply retroactively at discretionary sentence-modification proceedings would further the six purposes of the FSA—as evidenced by the legislative history of the FSA, overwhelming congressional opposition to pre-FSA cocaine sentencing policy, and secondary policy considerations. It further argues that courts denying discretionary retroactive effect to the FSA mandatory minimums have undermined the policy objectives of the FSA by misguidedly breathing life into the discriminatory 100-to-1 sentencing ratio for purposes of sentence-modification proceedings. This Comment concludes that the FSA’s mandatory minimums should be applied retroactively at discretionary sentence-modification proceedings because the failure to do so is inconsistent with the recent overhaul of federal drug sentencing policy and constitutional principles of equal protection.