Today, a sharply divided Sixth Circuit Court of Appeals ruled that the Fair Sentencing Act (FSA), which reduced the unfair, unjustified, and racially discriminatory crack cocaine/powder cocaine sentencing ratio from 100-to-1 to 18-to-1, does not apply to thousands of individuals who are currently incarcerated pursuant to sentences imposed under the discredited 100-to-1 regime.  Seven judges concluded that the FSA should apply to those serving sentences under the 100-to-1 federal sentencing structure, and ten judges declared that it should not.

“We are deeply disappointed in the outcome of this case. Thousands of people, the majority of whom are African-American, are still serving time under an unfair drug sentencing regime that has destroyed individuals, families and communities. Today’s decision demonstrates that those who are working to eliminate the impermissible role of race in criminal prosecutions and sentences still have much more work to do. We will continue to press this issue in the court,” said Sherrilyn A. Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., a leading civil rights law firm and a separate entity from the NAACP.

“We are heartened that seven judges on the Sixth Circuit Court of Appeals were willing to rule in favor of a just application of the Fair Sentencing Act. Their powerful dissents encourage us to remain steadfast in our effort to win the release of those held under draconian and discriminatory sentences,” Ifill added.

In 2010, Congress passed the FSA to reduce the irrationality and unfairness occasioned by a federal sentencing structure under which 100 grams of powder cocaine triggered the same sentence as a single gram of crack cocaine. Congress made this change in recognition of the fact that powder cocaine and crack are indistinguishable from one another and the fact that the law was imposed in starkly racially disproportionate ways.  Indeed, Judge Karen Nelson Moore, who joined the majority and concluded that the law does not apply to those who are already serving 100-to-1 prison sentences, acknowledged that the 100-to-1 ratio “led to the mass incarceration of African-American men and has bred distrust of law enforcement in the larger African-American community.” Nationwide, nearly 9,000 individuals—90% of whom are African American–are serving out sentences imposed on them under the 100-to-1 ratio. 

In its amicus (“friend of the court”) brief in this case, LDF argued that the court’s failure to apply the FSA to individuals serving sentences based on the 100-to-1 ratio would perpetuate an irrational and racially discriminatory sentencing regime. In oral argument, Vincent Southerland, Senior Counsel in the Criminal Justice Practice at the NAACP Legal Defense and Educational Fund, Inc., urged the court to apply the Fair Sentencing Act’s new 18-to-1 crack-powder cocaine sentencing ratio to those still serving sentences under the old 100-to-1 ratio. 

Mr. Southerland noted that “everyone—from all three branches of government to the law enforcement community and the American public—has recognized that the old 100-to-1 crack cocaine sentencing ratio was unfair and racially discriminatory.  The Fair Sentencing Act was enacted to end that old discriminatory sentencing ratio.  It is extremely disheartening that a majority of the judges on the Sixth Circuit failed to see the inherent arbitrariness and unfairness in perpetuating the unjust 100-to-1 sentencing ratio, despite Congress’s command in the Fair Sentencing Act.”  

In his dissent, Judge R. Guy Cole agreed, explaining, “Congress repealed the law because the ratio is unjustified, with the full awareness of its discriminatory effects. Using the ratio to deny sentence modifications continues to treat African-American offenders more harshly than White offenders, despite Congress’s aim to the contrary.”